We’ve seen plaintiffs argue in post-Riegel medical device preemption cases – and if we win Levine, we expect we’ll see it in drug cases as well – that preemption should be denied because there is legislation pending in Congress, but not enacted, that would overturn binding Supreme Court precedent.
Not only is that a facially bogus argument, but there is also precedent rejecting it. See United States v. Mauro, 436 U.S. 340, 356 n.24 (1978) (“we deem it irrelevant that bills currently pending in...
