Argument preview: Will presumption against preemption survive?

At Wednesdays oral argument in National Meat Association v. Harris, the Court will consider the preemptive sweep of the Federal Meat Inspection Act (FMIA).

The FMIA expressly preempts state laws that impose [r]equirements within the scope of [the Act] with respect to premises, facilities, and operations of a slaughterhouse that are in addition to, or different than, the Acts requirements. It does not, however, preclude any State . . . from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this chapter.

The question now before the Court is whether the FMIA preempts a California criminal statute that prohibits a slaughterhouse from buying, receiving, or selling nonambulatory swine or processing, butchering, or selling meat from such swine and requires a slaughterhouse to take[] immediate action to humanely euthanize such swine. The National Meat Association (NMA), the petitioner before the Court, sued the state of California, alleging that the statute is preempted. The Humane Society and other animal-rights groups intervened as defendants. The district court granted the NMA a preliminarily injunction. On appeal, in a brief and pun-filled opinion, the Ninth Circuit (per Kozinski, C.J.) held that the California statute was not preempted, and it reversed the entry the injunction. According to the Ninth Circuit, the FMIA establishes inspection procedures to ensure that animals that are slaughtered are safe for human consumption, but this doesnt preclude states from banning the slaughter of certain kinds of animals altogether. . . . Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat. The court concluded that California law doesnt require any additional or different inspections than does the FMIA, and is thus not a regulation of the premises, facilities, and operations of slaughterhouses.

The NMA filed a petition for certiorari. The Court preliminarily sought the views of the Solicitor General on behalf of the United States, which disagreed with the Ninth Circuits preemption ruling but recommended that certiorari be denied because the ruling was interlocutory, was not the subject of a circuit conflict, and affected only California. The Justices granted certiorari anyway.

The Courts decision will of course determine the fate of Californias statute, which in turn could serve as a model for other states seeking to regulate the slaughter of so-called downer animals that are nonambulatory. The Justices views of the case will probably turn on how broadly they view the sweep and purposes of the FMIA, and whether they conclude that Californias statute is directed at the same requirements or is instead more distantly (as the Humane Society in particular argues) concerned with matters of animal cruelty.

The broader question raised by the case is the extent to which the presumption against preemption on which the Ninth Circuit relied remains good law. The Justices have repeatedly articulated such a presumption. But at the end of last Term in PLIVA v. Mensing, a four-Justice plurality (Thomas, J., joined by Roberts, C.J., Scalia, Alito, JJ.) concluded that the presumption should no longer apply in conflict preemption cases like this one. Justice Kennedy did not join that part of the PLIVA opinion, so the presumption has yet to be disavowed and seemingly has the support of five Justices.