The Appellate Record Blog: Yes, [West] Virginia, There Is A Supremacy Clause

Yes, West Virginia, there is a Supremacy Clause. It exists as certainly as Congress and taxes and purse strings exist.

And that goes for you too, Montana and Pennsylvania and California.

In a quartet recent opinions the court asserted federal power, twice in unanimous opinions whacking errant state supreme courts for stepping out of bounds.

After the break a brief discussion of:

Marmet Health Care Center, Inc. v. Brown, holding that states may not carve specific classes of claims out of the Federal Arbitration Act; PPL Montana, LLC v. Montana, holding (remarkably) that river segments that you can't navigate are non-navigable and thus federal; Kurns v. Railroad Friction Products, holding that an 85-year-old, field preemption case, which likely would be decided differently today, nonetheless preempts a claim for alleged asbestos exposure resulting in mesothelioma;and National Meat Association v. Harris holding that California's slaughterhouse regulations were preempted by the Federal Meat Inspection Act. Enjoy!

The blockbuster case for the October 2011 term probably has to be Obamacare---er, The Affordable Healthcare Act case. But court's docket is full of cases delineating federal legislative power.

In Marmet, the West Virginia Supreme Court held as a matter of public policy that nursing home injuries and deaths were non-arbitrable, notwithstanding arbitration clauses in the admission agreement. The West Virginia court (of Caperton v. A.T Massey Coal Co. fame) characterized the Supreme Court's interpretation of the FAA and its preemptive scope "tendentious" and "created from whole cloth."

But see, there is a reason the high court is called the SUPREME court. And "tendentious" or not, precedents are precedents. Cranky old Judge Per Curiam...