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Obama issues preemption directive limiting Bush regulatory overrides of states

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] US President Barack Obama on Wednesday directed heads of executive departments and agencies that a sufficient legal basis is required to preempt state laws and that any legitimate state prerogatives should be fully considered, marking a departure from Bush administration policy. The memo directs against the inclusion of preemption provisions in federal regulations except where they would be justified under legal principles of federalism such as those listed in Executive Order 13132. The memo also directs heads of executive departments and agencies to review regulations issued in the past 10 years that attempt to preempt state law to determine if such preemption is justified and, if it is not, to take remedial actions which may include amending the regulations. The policy is a change from the Bush administration's use of federal regulations to undercut state protections of health, safety, and the environment. Obama maintained that while the federal government's role in regulation is critical, state and local governments have frequently protected general welfare and individual liberties more aggressively and that:Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values.The American Association for Justice applauded the memo, stating that the policy allows the rule of law to "once again prevail over the rule of politics." Preemption of state law occurs when federal law conflicts or is inconsistent with existing state law. The Supremacy Clause of the US Constitution states that federal law "shall be the supreme Law of the Land." In March, the Supreme Court ruled that drug labeling requirements under the federal Food, Drug and Cosmetic Act (FDCA) did not preempt state products liability laws. In December, the Court ruled that the Federal Cigarette Labeling and Advertising Act did not preempt state law claims based on allegedly deceptive cigarette advertising.

Full post as published by JURIST - The Paper Chase on May 21, 2009 (boomark / email).