Constitutional Law

"The Emerging Threat of Regulatory Preemption"

"The Emerging Threat of Regulatory Preemption" is a new ACS Issue Brief written by Georgetown University Law Center Professor David C. Vladeck. Professor Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. He concludes:

While the public watches the Supreme Court wrestle with the preemption questions presented in Reigel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view. The quiet but insidious erosion of state tort law remedies --- and the health and safety benefits that are associated with them --- continues unabated. Our health and safety agencies have been subject to a hostile-takeover by an Administration that cares more about constituent-serving outcomes than their statutory mission to protect the public. The winners will be the Administration’s corporate patrons who will be given the immunity from tort liability they never could have gotten from Congress. The loser will be the tens of thousands of Americans injured through no fault of their own but who will no longer have any means of redress.

Watch Professor Vladeck discuss the issue of regulatory preemption at a panel discussion on Reigel v. Medtronic (full video).  A video excerpt of Professor Vladeck discussing Congress and preemption:

Professor Vladeck introduces his discussion of the "emerging threat of regulatory preemption."

The Bush Administration has been quietly waging a campaign to dramatically reconfigure American tort law by claiming that routine regulatory action taken by federal agencies has the effect of preempting state law damages claims. The campaign has been remarkable not just because of its scope, but also because it has attracted virtually no public attention. Why has the campaign gone essentially unnoticed? Because the Administration does not seek to change tort law through transparent means, like the enactment of a federal law or the adoption of regulations. Instead, it has resorted to simply including statements in lengthy and obscure preambles in Federal Register notices that regulatory action taken by an array of federal agencies — the Food and Drug Administration, the National Highway Traffic Safety Administration, the Consumer Product Safety Administration, to name a few — broadly preempts state law. One commentator has aptly dubbed this campaign “preemption by preamble.”

The concern here is not with agencies expressing their position on the preemptive effect of their regulatory actions. That is unobjectionable, and, in many instances, unavoidable. What is objectionable is that agencies are making substantive preemption determinations in a way that is neither transparent nor democratic, and are doing so because the Administration has determined that insulating big business from tort litigation is right as a matter of federal policy. Invariably, in making these pro-preemption determinations, the agency is repudiating longstanding agency policy to the contrary.

This White Paper is intended to serve two purposes: First, to inform readers that this campaign is well-underway and sketch out, albeit briefly, some of the serious policy implications that it raises; and second, to explain why making preemption determinations by regulatory fiat raises serious separation of powers and agency capture concerns.

The Issue Brief is available here.

Full post as published by ACS Blog on January 17, 2008 (boomark / email).