The Deregulatory State

By Gostin, Lawrence O. | The Hastings Center Report, March-April 2008 | Go to article overview
Save to active project

The Deregulatory State

Gostin, Lawrence O., The Hastings Center Report

Public health can be achieved only through collective action. Individuals acting alone cannot protect themselves from work hazards, unsafe or ineffective vaccines and pharmaceuticals, impure food and water, a polluted environment, or epidemics. Only a well-regulated society can secure the essential conditions for health. Yet in this country, successive administrations have eroded health and safety protections. The consequences include deaths in the mining industry, lead in toys, industrial solvents in toothpaste, harmful bacteria in peanut butter and spinach, and unsafe and ineffective pharmaceuticals (such as COX-2 inhibitors and non-statin cholesterol medications).

The "Deregulatory State" is a result of a conservative campaign that has created and reinforced deep-seated concerns about overbearing government. The political dialogue used to describe agency action is pejorative and effective: "big government," "centralized," "top-down," and "bureaucratic." This antigovernment narrative has set the terms of the debate about the role of government in protecting the public from market excesses and failures.

The Deregulatory State takes many subtle forms, including self-policing, so that industry discloses and corrects its own safety violations; incapacitating, so that agencies are starved of expertise and resources; devolving, so that residual regulation is focused at the local level; preempting, so that the federal government denies states the authority to protect their citizens; and privatizing, so that government functions are conducted by "for-profit" or voluntary entities. In this column, I will focus on two broad categories of deregulation: federal preemption and privatization.

Regulatory Vacuums through Preemption

Congress has the power to preempt, or supersede, public health regulation at the state level, even if the state is acting squarely within its police powers. Federal preemption may seem like an arcane doctrine, but it has powerful consequences for the public's health and safety. The Supreme Court's preemption decisions can effectively foreclose meaningful state regulation and prevent people from turning to the courts for legal redress. (1) Preemption has had antiregulatory effects on issues ranging from tobacco control to occupational health and safety, motor vehicle safety, and employer health care plans. From 2001 to 2006, Congress enacted twenty-seven statutes that preempt state health, safety, and environmental policies, demonstrating the potential breadth of federal power to override state public health safeguards. (2)

The Bush administration has vigorously advocated preemption to invalidate state public health efforts in both amicus curiae briefs and preambles to agency rules. On February 20, 2008, the Roberts Court handed the administration a victory in two major preemption cases. In Rowe v. New Hampshire Motor Transport Association, the Court held that a federal transportation statute preempted Maine's laws designed to prevent minors from buying cigarettes on the Internet. (3) In Riegel v. Medtronic, Inc., the Court ruled that manufacturers are immune from tort liability for medical devices, such as implantable defibrillators or heart pumps, that received pre-market approval and meet Food and Drug Administration specifications. (4) The Court just heard another FDA preemption case on whether tort liability can be based on fraud for misrepresenting or withholding information from the agency during the approval process. And next term, the Court will decide whether FDA drug approval preempts personal injury suits. In effect, the executive and judicial branches are dismantling a long-standing civil justice safety net for consumers and patients who suffer from industry misconduct left unchecked by federal and state regulations.

Outside the courtroom, multiple agencies charged with protecting public health, safety, and the environment have systematically pushed for preemption through administrative rulemaking.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Deregulatory State


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?