We will be hearing lots about “federal preemption” over the next several months since it’s the latest strategy designed by powerful interests to destroy the civil justice system. However, I find that most folks don’t have a clue what the term federal preemption means or what it’s all about. To be candid, in past years, there really wasn’t any reason for them to know about it. Now it’s certainly something that will affect the rights of all American citizens and for that reason all of us must become knowledgeable about federal preemption of state laws. Basically, federal preemption means that an act by a federal regulatory agency would override state law and keep valid claims from being pursued in state court.
Currently, the Bush Administration is conducting an unprecedented campaign to usurp state authority, weaken regulatory scrutiny and protect corporate wrongdoing through a coordinated strategy of what is referred to as “preemption.” For the uninformed among us, which includes most lawyers, preemption means that Americans are denied the right to hold companies accountable under the laws of their own states for the harm those corporations cause. This harm to citizens in the states comes about because of the providing of dangerous drugs, cars, toys, and food by corporations both domestic and foreign.
Preemption is being pushed on people as a result of federal regulation and standards promulgated by federal regulatory agencies. Over the years, GOP office holders were generally advocates of states rights and local control, and that applied to our system of courts. Now we see a complete turnabout by the Bush Administration, and the Administration’s goal is clearly not to protect people. Instead it is to pay back campaign debts to powerful interests by giving them a shield from liability in state lawsuits.
The Bush Administration’s campaign to advance corporate irresponsibility threatens the health and safety of American citizens. Preemption must be stopped because it affects millions of Americans. A recent report by the Center for Progressive Reform exposes the campaign by powerful corporate interests, aided and abetted by the President’s advisors, which if successful will bar states from enforcing laws that punish corporate abuse and wrongdoing. It’s actually a stealth plan utilizing federal regulatory agencies that should be protecting consumers and not hurting them. But, it doesn’t come as a surprise because it’s typical of the Bush Administration, and that’s most unfortunate. Preempting state laws through the regulatory rule making process is wrong and can’t be justified. It must be stopped in its tracks without delay. The report referred to above reveals some significant happenings:
• The Food and Drug Administration declared that a rule regarding drug labeling preempted state tort laws even though the agency had long held to the contrary – a drastic change in policy undertaken without benefit of public comment.
• The National Highway and Traffic Safety Administration adopted a rule on roof-crush resistance with similar language seeking to preempt state common law despite earlier determinations that adopted a diametrically opposed view.
• The Department of Homeland Security adopted preemption provisions even though the Senate Homeland Security and Governmental Affairs Committee had specifically rejected the approach. The DHS language places states that want to take more stringent actions regarding homeland security in a straight-jacket and that’s wrong.
The issue of preemption will be decided in the courts and if established legal principles are followed, the American people will be the winners. However, Congress should step in and let the Bush Administration know that the federal regulatory agencies must follow the law. I don’t believe the powerful interests will be successful because the American people – once they realize how badly preemption hurts them – will demand that the state courts are protected and their rights preserved. That’s why its important for folks to contact their elected representatives and let them know that preemption is wrong and won’t be tolerated.
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