As we have written in prior issues, the Bush Administration is trying its best to make it more difficult – if not virtually impossible – for consumers to sue large corporations over faulty products. In effect, they are rewriting the bureaucratic rulebook. A recent Associated Press story revealed that lawsuit limits have been included in 51 rules proposed or adopted since 2005 by federal agency bureaucrats. The regulatory agencies govern just about everything Americans use: drugs, cars, railroads, medical devices and food. During the Bush years, consumer advocates have fought hard to preserve the right to trial by jury guaranteed to all citizens by the U.S. Constitution. The agencies’ use of the government’s rule-making authority represents the Administration’s last stand in a long-standing drive to shield companies from lawsuits and give them total immunity from being held accountable for their wrongdoing.
President Bush has tried a back-door approach and it almost worked because the public was being kept largely in the dark. If the rulemaking at the various agencies had been a centralized effort in the White House or the Justice Department, “it would have failed because immediately everybody would have mobilized resistance,” according to Michael Greve of the American Enterprise Institute, a conservative Washington think tank. Limits on lawsuits have been ordered or proposed for drug labeling and packaging and for rules ranging from mattress flammability standards to school bus passenger seating to dietary sweeteners and roof-crush requirements in motor vehicle rollovers. The regulations came from the following agencies:
Ten of 15 federal traffic safety regulations from last year have been finalized by NHTSA and are now in force or soon will be, a development that has gotten minimal public attention. As we have reported, underlying this bureaucratic version of lawsuit reform is the concept of federal preemption. Once people learn what this is all about they are totally against it. However, because of the stealth manner in which the project was planned and carried out, few people even know what federal preemption is all about. Rooted in the Supremacy Clause of the Constitution, federal preemption refers to circumstances in which federal law and regulation trump state law, in this instance state laws that govern when one person may be held liable for another’s injury or death. There is no way that the Supremacy Clause can be used to justify federal preemption in the context described above.
Companies can’t be allowed to use broad preemption language in regulatory preambles to get cases thrown out of court. The preambles are the agencies’ interpretation of whether the federal regulatory law permits preemption of lawsuits. An expansive interpretation of preemption leaves little room for consumers to sue, and that’s why all consumer groups are against it. In fact, all public opinion surveys that I am aware of reveal that once folks realize how federal preemption works and how it affects them, they are totally against it.
The Bush Administration is engaged in a brazen end run around Congress, the Constitution and the states in an effort to let corporations that commit wrongful acts off the hook and, as a result, knowingly put consumers at risk. Joan Claybrook, former head of NHTSA, says her former agency is using regulatory preambles in a campaign against lawsuits. Joan says that what the companies want is “complete immunity and the regulators in the Bush Administration are helping them.” As you know, Joan is now head of the consumer advocacy group Public Citizen and fights daily for consumers. We all have a moral obligation to join this battle so that the American people can be protected from unsafe and dangerous products and drugs.
Source: Associated Press
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