A landmark achievement relating to federal preemption was announced on May 20th in Washington. President Obama made it known that he would follow well-established law as it relates to preemption. From this date forward, the regulatory preemption of state common law will be strictly limited. Even regulations issued within the past ten years will have to be reviewed and in some cases amended. This is a major victory for the rights of all Americans and is the culmination of years of tireless and dedicated efforts by a number of consumer groups.
The President issued a Directive to the Heads of all Executive Branch Departments and Agencies stating the policy of his Administration to be that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” From now on, preemption of state common law will no longer be presumed or asserted by regulatory agencies absent “explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles.”
In order to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis, the President’s directive provides that:
• Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
• Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption.
• Heads of departments and agencies should review regulations issued within the past ten years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
This is a tremendous victory for the American people. It reflects what the law has always been and how it was applied prior to the Bush years. This directive corrects a decade of abuse of the regulatory process and signifies a triumph both for states’ rights and for the legal rights of all Americans and their families. A debt of gratitude is owed to groups such as Public Citizen, Public Justice, and many others whose hard work made this happen. We are fortunate to have a President who respects the rule of law and understands how preemption has been applied wrongfully during the Bush years. Lawyers have been fighting the preemption battle day-in and day-out in courtrooms throughout America. Even with this important victory, however, we must not quit now. Instead, we must confront the continuing assaults on our civil justice system – and we must prevail for the good of all American citizens.
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