Neil Gorsuch Questions Attorney on 'Relating To' Test in Oil Case

Gorsuch's Scrutiny of the 'Relating To' Test

• ⚖️ Justice Gorsuch questioned the attorney on how he would construct a test for the oil case, specifically focusing on the phrase 'relating to'.
• 💡 The discussion revolved around whether the attorney's proposed test would include the word 'direct', a term previously used by Justice Kagan and then removed by Mr. Clement.

Causation and Plausibility in Legal Tests

• ❓ Gorsuch explored the potential for a 'butterfly effect' problem with broad causation language, suggesting that courts should use common sense to avoid overly attenuated connections.
• 🧐 He noted that while a direct link might be obvious, the attorney's formulation seemed to avoid the word 'direct' itself.

Precedent and Congressional Intent

• ✈️ The attorney referenced the airline deregulation context, suggesting that courts have historically applied common sense and not seen a flood of cases despite the broad language.
• 🏛️ He argued that Congress, when enacting the statute in 2011, was aware that 'relating to' is a broad term, especially after Justice Scalia's concurrences in Dillingham and Egelhoff, indicating an understanding of potential difficulties in application.
• ⚠️ While acknowledging that hard cases are inherent, the attorney maintained that courts have not struggled significantly with these types of preemption issues in practice.