Justice Clarence Thomas has never been shy about questioning settled and not-so-settled areas of the law. On Monday, he joined Justice Samuel Alito Jr. in doubting the constitutionality of state unclaimed property laws as well as the takings clause approach to legislatively enacted conditions on the use of property. And on Tuesday, he challenged Congress’ authority to pre-empt—or block—a “wide array” of state laws under the federal law governing employee retirement and benefit plans.
Thomas raised his pre-emption concerns in Gobeille v. Liberty Mutual Insurance. The efforts of Vermont and 17 other states to collect data on health insurance costs, prices, quality and resources, suffered a major blow when the high court, voting 6-2, held that Vermont’s data collection law was pre-empted by the federal Employee Retirement and Income Security Act (ERISA).
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