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The Supreme Court on Monday continued to police the boundary between federal and state power-strengthening the federal pre-emption of state court lawsuits on auto safety, but limiting the reach of federal laws on arson and whistleblower cases against states. The justices also struck down on First Amendment grounds a provision of the federal Telecommunications Act that required cable operators to scramble or block sexually explicit programming. It was the third congressional enactment found unconstitutional by the Supreme Court this year. None of the four decisions today had the sweeping anti-Congress tone of last week’s ruling in United States v. Morrison, which struck down the federal Violence Against Women Act (VAWA). But each decision helps complete the picture of the high court’s intensifying interest in federalism this term. In Geier v. American Honda, the Court dealt with the pre-emption branch of federalism doctrine, holding that federal Department of Transportation rules on air bags and seat belts would be thwarted if drivers could sue automakers in state courts over their failure to equip cars with air bags. The 5-4 decision was a defeat for trial lawyers who argued that federal regulations should not keep injured consumers from recovering damages in state courts. In the case before the Court, Washington, D.C., motorist Alexis Geier sued Honda for failing to install an air bag in the 1987 model she was driving when she suffered serious head injuries in an accident. Honda argued that federal regulations, which did not require air bags for that year’s model, should protect it from state court liability. The U.S. Court of Appeals for the D.C. Circuit agreed that the lawsuit was pre-empted, as have the 1st, 3rd, 10th, and 11th circuits. But state courts in Ohio, New York, Arizona, Indiana, and New Hampshire have sustained state tort actions. Justice Stephen Breyer, writing for the majority, said the federal regulations “deliberately sought variety” in the type of passive restraints it required from manufacturers, taking into account issues of cost, safety, and consumer acceptance. Allowing state courts, in effect, to set their own standards through litigation would upset the federally established balance. Joining Breyer were Chief Justice William Rehnquist, Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. Dissenting were Justices John Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg. Stevens called the decision an “unprecedented extension of the doctrine of pre-emption.” Jeffrey White of the Association of Trial Lawyers of America called the decision a “major step” that erroneously equates state court verdicts with statewide regulations. “It doesn’t work that way,” said White. Stephen Bokat, senior vice president and general counsel of the Chamber of Commerce, said the ruling would help nationwide businesses that prefer a national standard over 50 different rules. “Anything the trial lawyers don’t want, we want,” Bokat added. In Jones v. United States, the Court, as expected, ruled that the federal law that makes arson a crime did not extend to fires set in ordinary residences. The 7th U.S. Circuit Court of Appeals said that the law, when applied to such fires-usually prosecuted at the state level-exceeded congressional power to regulate interstate commerce. It was for this reason that the Court struck down VAWA last week, and the Gun-Free School Zones Act in United States v. Lopez, in 1995. But on Monday, the Court unanimously stopped short of striking down the arson law on commerce clause grounds. Instead, it decided the case on statutory grounds, finding merely that residential fires fall outside of the definition of the law. Noting that the arson law covers property “used in” interstate commerce, Justice Ruth Bader Ginsburg said that none of the interstate connections cited by the government-out-of-state mortgages, insurance policies, and natural gas-fit. The law, she said, is “most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing or past connection to commerce. . . . Were we to adopt the Government’s expansive interpretation . . . hardly a building in the land would fall outside the federal statute’s domain.” Ginsburg, who dissented in Lopez, nonetheless cited it as a reason for interpreting the law narrowly so as to avoid finding the law unconstitutional. In the whistleblower case, the justices ruled 7-2 that private citizens have the right to sue on behalf of the federal government in cases of fraud against the government-so-called qui tam suits under the False Claims Act. But the law does not allow those suits to be brought against state government accused of defrauding the U.S. government, the Court ruled. States, said Justice Antonin Scalia, are not “persons” under the act, making them immune from qui tam suits. The ruling came in Vermont Agency of Natural Resources v. Stevens, in which a former state employee accused Vermont of making false claims to the Environmental Protection Agency. As with the arson case, the Court decided the qui tam case on statutory grounds-thereby avoiding a more expansive 11th Amendment decision. “The Court expresses no view as to whether a [qui tam] action in federal court against a state would run afoul of the Eleventh Amendment, but notes that there is ‘a serious doubt’ on that score.” Justices John Paul Stevens and David Souter dissented. In the one case Monday in which a federal law was struck down on constitutional grounds, the Court decided that Congress’ attempt to block or scramble explicit cable programming was “content-based” regulation that runs afoul of the First Amendment. The provision of the 1996 communications law overhaul was aimed at alleviating the problem of “signal bleed”-the occasional ability of cable subscribers to see fuzzy audio or video of unwanted adult cable programs on adjacent channels. The cable industry said that until digital technology is more widely used, total scrambling of the signal is too costly, and restricting the programming to times between 10 p.m. and 6 a.m. violated their rights to free expression. A three-judge district court panel in Delaware struck down the law because the government had not fully explored less restrictive ways of attacking the “signal bleed” problem. Justice Anthony Kennedy agreed, writing in United States v. Playboy Entertainment Group that the government had failed to prove that the scrambling or time regulations were the “least restrictive means” of restricting children’s access to the programming. Kennedy noted that all sides had agreed that Playboy’s programming was not obscene and therefore was entitled to First Amendment protection. As such, restrictions on Playboy had to meet the highest “strict scrutiny” standards. “Even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be obtained by a less restrictive alternative.” The government had argued that a less restrictive alternative-allowing individual subscribers to request that signal bleed be blocked-had failed. But Kennedy said the government had failed to show that a well-publicized household-by-household program would not work. The Playboy case was decided by an unusual lineup of justices. Joining Kennedy in the majority were John Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg. Justices Antonin Scalia, Stephen Breyer, Chief Justice William Rehnquist, and Sandra Day O’Connor dissented. “By finding ‘adequate alternatives’ where there are none, the Court reduces Congress’ protective power to the vanishing point,” Breyer wrote. “This is not what the First Amendment demands.” Playboy chairman and CEO Christie Hefner applauded the ruling. The law, she said, “was an intrusion on individual choice by the federal government. Our position has been vindicated by today’s ruling.”

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