Brewer

In a move that apparently surprised her own state attorney general, Arizona Gov. Jan Brewer tapped Paul Clement to lead the state’s effort to get the U.S. Supreme Court to lift the injunction preventing enforcement of parts of the state’s controversial immigration bill SB 1070.

That measure, which Brewer signed into law in 2010, authorizes police to check the immigration status of an individual who is stopped, detained or arrested if a “reasonable suspicion” exists that the person has entered the country illegally.

Clement

Clement, now a partner at Bancroft, recently parted ways with King & Spalding to continue representing House Republicans in their bid to defend the Defense of Marriage Act.

Fresh off a high court victory in Chamber of Commerce v. Whiting, in which the Court upheld an Arizona law imposing strict sanctions on employers who hire illegal workers, Brewer blindsided Arizona Attorney General Tom Horne by hiring Clement to lead the state’s defense of SB 1070, The Arizona Republic’s Ginger Rough reports.

Horne was unaware of Brewer’s decision to hire Clement until reports surfaced Tuesday morning, Rough reported, and he had previously said that he was eager to handle all legal proceeding pertaining to the case. The Whiting case was argued by Arizona Solicitor General Mary R. O’Grady.

In a statement, Horne said: “It is important that we win the SB 1070 case. Paul Clement is an outstanding attorney, and his addition to the legal team is valuable to the state’s defense of the law.”

HT: How Appealing

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption – a doctrine that has been well-established and upheld by the Supreme Court – should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.

Today, members of Congress and the justices of the U.S. Supreme Court enjoy their last day off before heading back to the office on Monday. President Barack Obama is wrapping up a visit to Mexico today before heading to Trinidad and Tobago for the Summit of the Americas.

Local food police falters: It’s not just federal agencies that are having trouble finding a way to keep the nation’s food supply safe – local and state food safety agencies are facing economic hurdles as well. (WaPo)

Prosecutors avoid prosecution: The botched trial of former Sen. Ted Stevens – and the resulting criminal probe – is the exception rather than the rule: prosecutors rarely get prosecuted after misconduct charges. (WSJ – Sub. Req’d)

Going digital: More federal courts have begun to offer digital audio recordings of courtroom proceedings as part of an expanded program intended to give more access to case information. (Lawyers USA)

Taxing the president: You weren’t the only one paying up to Uncle Sam this week. The first couple released their jointly-filed income tax information. They reported an adjusted gross income of $2656902 and paid $855323 in federal taxes. (Reuters)

Immigration issues: President Barack Obama says that when it comes to overhauling immigration, one of his goals is to eliminate the politics that doomed a previous attempt to revamp the system. (AP)

As President Barack Obama begins his first full week as president, Congress will be squarely focused on the economy this week, as lawmakers hold confirmation hearings on the president’s pick to head the Treasury Department and consider economic stimulus legislation. And orders and/or opinions could be coming from the Supreme Court this morning.

Meanwhile,

It’s more easy being green: Today President Obama will announce plans to give states more leeway in imposing automobile emissions standards. The move is a sharp departure from the Bush administration, whose refusal to grant states the ability to impose tighter greenhouse gas emissions led to a lawsuit between the EPA and 13 states. (NYT)

More to Holder holdup: One of the issues holding up the confirmation of attorney general pick Eric Holder? Some lawmakers want to know whether or not he plans to seek criminal probes of former Bush administration officials over CIA tapes depicting harsh interrogation methods used against two al-Qaeda suspects. (WaPo)

Obama’s labor team: Meanwhile, Obama has named his picks to head the federal agencies in charge of enforcing private sector labor laws and enforcing federal employment discrimination laws. (Lawyers USA)

More Supreme nomination Chatter: If a Supreme Court vacancy opens up this summer, who might get the nod? SCOTUSBlog’s Tom Goldstein thinks that newly-named SG pick Elena Kagan is in a good spot, as are two female federal judges. (SCOTUSBlog)

Peanut butter recall grows: The FDA is continuously adding to the list of peanut putter-containing products that may be tainted with salmonella. Meanwhile food producers like Kellogg are pulling more products from the shelves voluntarily. (MarketWatch)

The American Association for Justice isn’t the only group urging President-elect Barack Obama to make the reversal of Bush era policies preempting state laws a high priority – even with other pressing matters like the economy and foreign policy afoot.

The National Association of Attorneys General also is urging the incoming administration to make preemption a top issue. Doing so will go hand-in-hand with dealing with some of the other pressing problems facing the nation, according to the top legal officials of the 50 states, the District of Columbia and the nation’s territories.

“In the current, failing economy, with housing prices plunging, and the number of foreclosures soaring, it is critical that the state Attorneys General continue to be the ’56 cops on the beat’ and be given the necessary regulatory authority to impose appropriate standards on lending institutions,” states a briefing paper released yesterday by NAAG describing its agenda for the new administration.

“State Attorneys General have traditionally resisted federal preemption of state laws, whether by Congress, the Courts or the Executive Branch,” the paper states. “Rather, state Attorneys General have supported a more pure federalism, a dual sovereignty whereby state governments and the federal government each retain and actively exercise the powers and functions of government at the same time.”

See the entire paper here.

Today, the Supreme Court issued five decisions, three of which hold that federal law preempts certain state regulations, state claims, or claims of jurisdiction by state administrative authorities.

In a decision that surely disappoints the plaintiff’s bar, the Supreme Court held in Riegel v. Medtronic, No. 06-179, that state law tort claims challenging the safety of FDA-approved medical devices are barred by federal law.

The opinion, authored by Justice Antonin Scalia, was based on the rationale that the Food and Drug Administration and federal laws covering device pre-market approval create a carefully-crafted balancing system for ensuring that safe products are on the market, while assuring that devices needed by patients are accessible. Federal regulators – not state authorities, and certainly not juries seated in state court trials – are in the best position to weigh the risks and benefits in this scheme.

“When state common law requires a recalculation of that balance, it frustrates” the regulatory scheme, Scalia said in comments this morning from the bench. “Leaving [it] to a jury [is] even worse.”

In Preston v. Ferrer, No. 06-1463, the Court held that the Federal Arbitration Act precluded the attempt by television’s “Judge Alex” Ferrer to go to a state court seeking a ruling that his contract with his former manager was void, rendering the contract’s arbitration clause void as well. He also sought to have the case heard before a state labor commission, claiming it held exclusive jurisdiction.

The opinion by Justice Ruth Bader Ginsburg held that once parties agree to arbitrate all disputes arising out of a contract, as Ferrer and his manager did, the Federal Arbitration Act preempts state administrative agencies, and the parties must arbitrate the dispute.
Allowing parties to go to state courts first “would likely [create] long delays, and Congress enacted the FAA to avoid delays,” Ginsburg said from the bench.

The court also ruled in favor on federal preemption in Justice Stephen Breyer’s opinion in Rowe v. New Hampshire Motor Transport Ass’n, No. 06-457, that federal law trumps two state laws requiring carriers delivering tobacco products to ensure that the recipients of the packages were of legal age to buy tobacco products.

In the other two opinions, both penned by Justice John Paul Stevens, the Court held that ERISA does not provide a remedy for individual injuries distinct from plan injuries for an administrator’s failure to follow the plan holder’s investment directions. But, the Court held that it does authorize recovery for for fiduciary breaches that impair the value of the entire plan. (LaRue v. DeWolff Boberg & Associates, No. 06-856) and that state courts can adopt broader rules of criminal procedure than those required by the U.S. Supreme Court (Danforth v. Minnesota, No. 06-8273).

More on these cases on coming up on this blog over the next few days, tomorrow on Lawyers USA‘s website, and in the next print edition of Lawyers USA.

THE SUPREMES: There are no oral arguments scheduled for next week. The justices will conference on Tuesday, and they may decide whether to take up the constitutional challenges to Washington D.C.’s handgun ban.

Elsewhere inside the beltway:

A bill that would create a state-based licensing system for residential mortgage originators in an effort to stem the subprime mortgage lending bust passed the House, despite some Republican opposition. (Reuters via Yahoo! News)

And President Bush isn’t too thrilled with some aspects of the bill, particularly a provision that give borrowers the right to sue firms that repackage loans. (WaPo).

Rep. Dennis Hastert, the longest-serving Republican Speaker of the House, will leave Congress before his current term is up. In his farewell address, he urged his colleagues to play nice. (Chicago Tribune)

President Bush said that Congress’ approach to judicial confirmations is “search and destroy.” (ABA Journal)

The president also announced his picks for five Justice Department posts. He has tapped Chicago federal District Judge Mark R. Filip as deputy attorney general. No word yet on a confirmation process timeline. (NYT).

Conservative jurists party like it’s their birthday. (BLT)

As Lawyers USA reported, environmentalists have had no success trying to use the Supreme Court decision in Massachusetts v. EPA to push energy companies to curb carbon dioxide emissions at power plants.

Until now.

The Kansas Department of Health and Environment rejected a permit for a new power plant based on enironmenal concerns over CO2 emissions. The Washington Post has more.