There were two big developments in the federal preemption story today. First, the Wall Street Journal has an article today discussing the Bush administration’s efforts to expand complete immunity preemption before the president leaves office. The article states:
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.
The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. The latest changes cap a multiyear effort that could be one of the administration’s lasting legacies, depending in part on how the underlying principle of pre-emption fares in a case the Supreme Court will hear next month.
Unfortunately, these regulations are not something that can easily be undone. Rulemaking is a tedious process that will provide significant immunity to defendants while a new administration works to undo the rules:
These new rules can’t quickly be undone by order of the next president. Federal rules usually must go through lengthy review processes before they are changed. Rulemaking at the Food and Drug Administration, where most of the new pre-emption rules have appeared, can take a year or more.
An additional problem with this delay is that new developments come along quicker than regulation changes. For example, assume a manufacturer makes a product that complies with a regulation and preemption applies. Unfortunately, someone discovers a life-threatening feature of the product that is making thousands of children sick. It could take a year or more to get regulations changed to reflect these developments. During the interim, the manufacturer is protected even if it knows that the product is harming the kids because it complied with the outdate regulation. That is simply unacceptable to the protection of our nation’s citizens.
I am also amazed at how brazen the administration and industry have been in admittedly going the rulemaking route because they know that Congress wouldn’t approve these rules. The article states:
Mr. Lefkowitz [former Bush domestic-policy adviser] said the administration decided not to press its pre-emption agenda in Congress, where it might lose. "There was already authority within federal government statutes and regulations to start the reform process without legislation," he said. "Using that and legal briefs, we proceeded."
A video from the Wall Street Journal discussing the problem is available here:
Not to be outdone, the American Association of Justice also released a report on complete immunity preemption entitled GET OUT OF JAIL FREE: HOW THE BUSH ADMINISTRATION HELPS CORPORATIONS ESCAPE ACCOUNTABILITY. The report is based on numerous Freedom of Information Act requests sent to various regulatory agencies. Though there are numerous conclusions, the most important parts of the study show a top-down coordinated plan on preemption and show the very cozy relationship between many federal regulators and the corporations that they are supposed to regulate.
Until now, the administration has denied that it was seeking a comprehensive plan, and that each agency was left to its own decisions. Not any more. Emails in the report detail how much involvement and coordiation there was among agencies.
Emails also show not only close relationships, but detail how there is a constant flux of employees going from the regulatory agencies to the various industries and vice versa. That’s certainly not a situation conducive to protecting the public’s rights.
The report concludes:
During the Bush administration, several federal agencies, headed by political appointees, have embarked upon an unprecedented campaign to negate the effect of state laws that protect consumers and injured workers—in effect granting immunity to irresponsible corporations. Without any constitutional authority, and often in direct contradiction to their own prior policies, these agencies have begun claiming that their own rules preempt state laws. Preemption of state law can leave individuals with no restitution for injuries caused by irresponsible corporations and further stacks the deck against American workers and consumers. It is just one part of a campaign by big business lobbyists to emasculate state consumer protection laws, and weaken regulatory scrutiny.
We obviously believe this is a huge problem. The long history of product regulation has been based on the fact that federal regulations and state tort law work in concert with one another to protect members of the public. But now, these preemption issues completely take away your rights. If you want to know more about complete immunity preemption, I also urge you to visit the following injuryboard writers who are talking about this issue: