Since we were involved in the Medtronic Infuse wars, we've been quite aware of Justice Gorsuch's textualist views towards statutes since he wrote Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015). In Caplinger he got a close look at the damage the Supreme Court had done to the plain meaning of the Medical Device Amendments' preemption clause, 21 U.S.C. '360k(a) in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). Suffice it to say that he didn't like it one bit, but because he was then a mere member of the Tenth Circuit, he had to attempt to apply it. We've been through all the details twice, first in our February, 2017 post on then-nominee Gorsuch's views on preemption, and again in our "Lohr Has Two Shadows" post the following October. We'll just jump right to the conclusion that then-Judge Gorsuch reached in Caplinger: he couldn't "help but wonder if perhaps some of those rules [in Lohr] warrant revisiting and reconciliation." Caplinger, 784 F.3d at 1340.
Then, in the interim, the Supreme Court abolished the "presumption against preemption" in express preemption cases, upon which the Lohr majority so strongly relied. See Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016).
Gorsuch the textualist has shown forth bright and clear recently - in an opinion that, oddly, was joined by all the quondam defenders of L...
