Legal News

On Preemption, the Left and the Right Enter Bizarro World

By Ashby Jones

The political left is cool with federal regulation. The political right likes regulations to remain in the hands of states.

Often, these gross generalizations hold. Except when they don’t.

Take, for instance the battle over federal preemption of state laws governing product-liability and personal-injury suits. The Bush administration encouraged federal agencies to issue rules preempting state laws and declared that a single federal standard held sway.

But in a two-page order Wednesday, President Obama called for a rollback of these regulations. He said federal agencies and departments should claim that state law is preempted by federal law only when there is a well-defined legal basis, and ordered agencies to review regulations from the past 10 years to see if the government had improperly asserted federal preemption. Click here for the WSJ story, from Alicia Mundy and Brent Kendall.

Obama’s order said state laws play a valuable role in supplementing federal regulation. “State and local governments have frequently protected health, safety and the environment more aggressively than has the national government,” he said.

Democratic-leaning legal groups, including trial lawyers (predictably), cheered the move, while business groups (predictably) panned it.

“One thing we know is you can’t sue your way into an economic recovery,” said Bryan Quigley of the U.S. Chamber of Commerce. “Allowing for more lawsuits will not create more jobs, except maybe for plaintiffs lawyers.”

The lobby for trial lawyers, the American Association for Justice, said the president’s order “overturned actions taken by Bush administration bureaucrats who were influenced by powerful, well-connected corporations.” The move will buttress “laws designed to give Americans basic rights to hold wrongdoers accountable,” a statement said.

We gotta give some Law Blog props to Kirkland & Ellis’s Jay Lefkowitz, Jay Lefkowitz, who led the Bush effort and now represents drug companies, for addressing the irony of the move. While Lefkowitz said Obama’s move would undo efforts to “save consumers money and eliminate a lot of unnecessary lawsuits,” he added: “The silver lining is it’s great to have a president with such healthy respect for states’ rights.”

Former California attorney general Bill Lockyer made a similar remark — albeit from the other side — back in 2006, calling the Bush administration the most aggressive federal government in the history of the United States.

Full post as published by Law Blog - WSJ.com on May 21, 2009 (boomark / email).