Consumer Law

Documents Detail Bush Preemption Strategy

By Deepak Gupta

by Deepak Gupta

The American Association for Justice (AAJ) has just released a fascinating new report, based in part on documents they obtained through FOIA, detailing the Bush administration's use of preemption as a deregulatory strategy.  In a stealth effort coordinated at the highest levels of the administration, according to the documents, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections.

The documents show that helping corporations escape accountability for dangerous products has been a top Bush administration priority.  AAJ's report explains how the administration's first attempts to preempt state-law protections consisted of amicus briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the preambles of agency regs, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

Relatedly, the Wall Street Journal has a new story about how "Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."

Full post as published by CL&P Blog on October 15, 2008 (boomark / email).