Law Alert: Supreme Court Asks for Solicitor General to Weigh In On AB 5 Preemption Challenge
November 15, 2021
Today, the Supreme Court invited the Solicitor General to file a brief expressing the federal government’s views on whether the Supreme Court should hear California Trucking Association’s suit claiming federal law preempts California’s AB 5, which imposes a restrictive ABC test to determine worker classification. In California Trucking Association v. Bonta, a federal district court granted an injunction that prohibits application of AB 5 to the trucking industry, holding it was very likely that 49 U.S.C. 14501 preempts the state law. On appeal, the United States Court of Appeals for the Ninth Circuit reversed the lower court and held AB 5 was not preempted. The Ninth Circuit granted a stay of the injunction while appeal is sought in the Supreme Court. The injunction should remain in place as the appeal is still pending.
The Solicitor General is the federal government’s representative before the Supreme Court. It is not uncommon for the Court to ask for the Solicitor General’s views on matters of federal preemption. There is no concrete deadline by which the Solicitor General must file its brief. After it is filed, the Court will meet again to decide whether to hear the case. The Court similarly invited the Solicitor General to file a brief in another airline preemption case on appeal from the Ninth Circuit, Virgin America v. Bernstein, that raised the question of the propriety of the narrow test the Ninth Circuit uses to determine preemption of generally applicable laws under a similar preemption provision.
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