Mich Ct App holds that absolute FDA approval defense in product liability lawsuits is an unconstitutional delegation

[John Noble]

At 1:51 PM -0600 2/20/02, Frank Cross wrote:
>I noticed this case and thought it interesting.  I think it was under the
>state constitution, with which I'm unfamiliar.  Still, the reasoning seemed
>pretty bizarre.  When a legislature adopts a court ruling statutorily,
>would the court strike that down for unlawful delegation?

This is a very interesting opinion, and I think they got it right. As the
quote below indicates, the opinion distinguishes between the adoption of
federal law as it stands (incorporation), and the adoption of federal law
as hereafter amended (delegation). It also distinguishes between delegation
to a state agency under state legislative authority and a federal agency or
private entity beyond the oversight of the state legislature. So Frank's
analog would be a statute that "codified" future court rulings (which
likely would also be unconstitutional, but on separation of powers grounds).

Here's another example that better illustrates the issue. When the Internal
Revenue Code was overhauled 20 or so years ago, the consumer interest
deduction was abolished at the same time that the federal rates were
slashed. However, states got a windfall -- applying their own unchanged tax
rates to the federally defined "Adjusted Gross Income," which increased
with the elimination of the consumer interest deduction. In effect,
Congress raised state income taxes nationwide. In law, the states had
delegated to Congress the power of the purse. I thought then, and still,
that it violated the fundamental idea of dual sovereignty and "our
federalism."

The solution here (if there's a problem) is a formality. The Michigan
legislature can extend the FDA approval defense to drugs as they are
approved by the FDA, either one-by-one or sweep them in once a year. It
could also, theoretically, delegate state legislative authority to a state
office to "approve" the FDA approval. But the formality reveals the real
problem with the statute the court struck down -- state lawmakers shouldn't
be rubber-stamping federal agency rulings.

John Noble