Johnson & Johnson v. Mississippi, ex rel. Fitch

1. In Puerto Rico v. Franklin California Tax-Free Trust, this Court held that courts should “not invoke any presumption against pre-emption” when a “statute ‘contains an express pre-emption clause.’” 136 S. Ct. 1938, 1946 (2016). Obeying that command, four circuits and a state supreme court no longer apply any such presumption to express pre-emption clauses. Four state supreme courts (now including the Mississippi Supreme Court) and two circuits, however, continue to apply the presumption to pre-emption provisions that they find ambiguous, or that touch on a state’s historic police powers, or both.

Did the Mississippi Supreme Court err in narrowly construing an express preemption clause on the ground that a presumption against pre-emption applies here because it considered the pre-emption provision ambiguous and because the provision touches on historic state police powers?

2. The lower courts are divided over what types of agency actions can pre-empt state law. One circuit and the Mississippi Supreme Court hold that only notice-and-comment rulemaking qualifies as pre-emptive. In contrast, seven circuits and a state supreme court reject that line, giving pre-emptive force to final administrative actions that warrant Chevron deference or to any final agency action with the force of law.

Did the Mississippi Supreme Court err in holding that only notice-and-comment rulemaking can preempt state law?