Presidents, Preemption, and the States

Article excerpt

On May 20, 2009, President Obama issued a presidential memorandum ordering federal agencies to strike preemption language from their regulations unless there is "full consideration of the legitimate prerogatives of the States and ... a sufficient legal basis." (1) The memo was a rebuke to the Bush Administration, which regularly inserted preemption provisions into federal regulations, affecting areas such as health, consumer safety, and the environment. As a result of federal preemption, state laws could not be more protective than the federal standard, and corporations were spared state tort lawsuits and state regulatory regimes. For instance, the EPA preempted the states from addressing climate change through limits on motor vehicle emissions, (2) the FDA decided that its approval of drug labels preempted state tort lawsuits, (3) and the National Highway Transportation Safety Administration ("NHTSA") issued an automotive door lock safety regulation preempting state law. (4) In each of these instances, the evidence suggests that the White House had a hand in making these preemption decisions; they were not solely the result of like-minded political appointees coincidentally pushing preemption to further business interests. (5)

President Obama rested his memorandum on the values of federalism, announcing that "[s]tate and local governments have frequently protected health, safety, and the environment more aggressively than has the national government." (6) The memorandum even reaches back in time; federal agencies must review the last ten years of regulations to assess whether the rules unjustifiably preempt state authority. (7) Not surprisingly, in response to the Obama memo, consumer advocates cheered a return to the "rule of law ... over ... the rule of politics," while business groups warned that companies would have "to navigate a confusing, often contradictory patchwork quilt of 50 sets of laws and regulations." (8) The Obama memo followed on the heels of the Supreme Court's decisions in Altria Group, Inc. v. Good, (9) holding that federal law did not preempt state smoking and health lawsuits based on misleading labeling, and Wyeth v. Levine, (10) holding that federal law did not preempt state tort failure-to-warn lawsuits involving prescription drug labels approved by the FDA. Shortly afterwards, the Court ruled in Cuomo v. Clearing House Ass'n that federal regulations issued by the Office of the Comptroller of the Currency did not preempt state investigations of national bank lending practices. (11) The preemption winds have shifted.

President Obama has announced a stand against unjustified preemption, and early indications suggest that the memo is impacting the output of federal agencies. For his part, President Bush also touted states' rights, for instance, stating before his inauguration: "I realize there's a role for the federal government, but it's not to impose its will on the states and local communities." (12) However, his Administration's actions belied this statement. (13) The preemption controversy is part of broader debates about the values of federalism and how best to protect them. On the one hand, the Tenth Amendment preserves state autonomy by limiting federal power to that not reserved to the states. On the other hand, the Constitution's Supremacy Clause provides that the laws and treaties of the United States "shall be the supreme law of the land ... anything in the Constitution or Laws of any State to the contrary notwithstanding," and courts have placed few limits on Congress' lawmaking powers. Between these foundational principles lies the preemption fault line. Scholars have tracked preemption trends and disputes closely, noting that preemption is currently the "primary threat to state autonomy." (14) There is a lively debate as to whether the best institutional actor to foster federalism is the courts, Congress, or agencies. These scholars ask: who is the best actor to decide whether a problem should be tackled at the federal or state level, or both? …