Tort Law

Obama Pre-emption Rollback Is Last Nail in Coffin for Policy, Expert Says

President Obama has ordered federal agencies and departments to strike pre-emption language from regulations unless it can be legally justified, a move that has won applause from trial lawyers.

The Bush administration had encouraged federal agencies to assert that their regulations pre-empted state laws on the same subject, the Wall Street Journal reports. The pre-emption assertion made it more difficult for lawyers to bring injury lawsuits based on claims that federally regulated products were defective or contained deficient warning labels. The claim also undercut state regulation in industries such as banking that could have been used to battle lending problems that led to the economic crisis, according to backers of increased state authority.

Obama cast his order (PDF posted by the Wall Street Journal) as promoting states’ rights. “The federal government’s role in promoting the general welfare and guarding individual liberties is critical, but state law and national law often operate concurrently to provide independent safeguards for the public,” he wrote.

Jay Lefkowitz, who led the Bush effort to promote pre-emption, told the Wall Street Journal that the order will roll back efforts to “save consumers money and eliminate a lot of unnecessary lawsuits.” He added, “The silver lining is it’s great to have a president with such healthy respect for states’ rights.”

The American Association for Justice applauded Obama’s order, saying it ”overturned actions taken by Bush administration bureaucrats who were influenced by powerful, well-connected corporations.”

The new approach calls for dropping a Bush administration push to put pre-emption language in the preamble of a regulation, which was not subject to public comment, the Associated Press reports. Instead, pre-emption language should be in a preamble only if it is in the regulation itself, and only if it is legally justified.

Doug Kendall, president of the Constitutional Accountability Center, pointed to a recent Supreme Court decision holding that a woman’s claims about an insufficient drug warning were not pre-empted by federal regulations. The new policy, when combined with the Supreme Court ruling, “is the last nail in the coffin for Bush-era pre-emption policy,” he told AP.

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