An editorial in today's New York Times condemns a policy, known as preemption, which prohibits consumers from suing manufacturers if a product harms a consumer, so long as that product is in some way regulated by the federal government. The editorial calls preemption a "perverse legal doctrine" and warns that as it "continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations."

Federal agencies are responsible for enforcing the positive law enacted by Congress. However, even when positive laws and regulations work, citizens must have an opportunity to seek legal redress if a product causes harm. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

A Times investigation into the birth control patch Ortho Evra proves why positive law sometimes does not work, and why tort law must be preserved:

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

In their attempts to shirk accountability by erasing the possibility of tort claims, pharmaceutical companies and other industries have found a friend in the Bush administration. The administration has advanced a pro-preemption argument in a number of policy areas covering everything from cars to mattresses.

According to a recent paper from the Center for Progressive Reform, the administration has been fighting for preemption on two fronts. "One form has been to intervene on the side of industry in tort litigation by the filing of amicus briefs arguing that the plaintiff 's claims against the corporate defendant are preempted by the agency's regulations or its general authority over the health or safety matters at issue," the paper argues.

The Bush administration has also tried, and been largely successful, in writing regulations that expressly preempt tort law, according to the paper. Federal agencies, including the FDA and the Consumer Product Safety Commission, have inserted preemption language into the preamble of regulations.

Under Bush, agencies have been inserting the language at the last minute, after the public comment period has closed. In the case of an FDA regulation on drug labels, "FDA deprived most of the public — including state officials, Congress members, and interested individuals and citizen groups — of any chance to weigh in on the matter before the rule was finalized."

Today, the Senate Commerce Committee held a hearing investigating recent regulatory lapses at the Federal Aviation Administration (FAA). Christopher Conkey of The Wall Street Journal reports on the damning testimony of the Department of Transportation's inspector general:

Three days into an extraordinary bout of flight cancellations stemming from a special safety review of the nation's airlines, inspector general Calvin Scovell told a Senate subcommittee that the FAA continues to give airlines too much freedom on complying with safety regulations. He criticized the agency's reliance on industry-provided data to determine risk areas for its inspectors to examine, and said that airlines shouldn't be able to sidestep penalties or costly fixes by voluntarily disclosing safety missteps to regulators.

"We are concerned that FAA relies too heavily on self-disclosures and promotes a pattern of excessive leniency at the expense of effective oversight and appropriate enforcement," Mr. Scovell said in his testimony to the committee.

Scovell is right to condemn the reliance on industry-reporting, especially in area as critical as air safety. Relying on the cooperation of businesses, no matter how accommodating they may be, is no replacement for zealous government oversight.

A cursory review of government data shows that, as Americans take to the air more frequently, FAA employment is shrinking. In 1983, FAA employed one full-time staffer for every 107 departing flights. By 2006, FAA employed one full-time staffer for every 286 flights. (In his testimony, Scovell acknowledges that one of FAA's major challenges will be hiring in two critical areas: air traffic control and aircraft inspection.)

Granted, technological improvements have surely made FAA's job more effective and efficient. But the controversy surrounding FAA casts aside the notion that government is in the way. Instead, it underscores the idea that voluntary industry compliance is not an adequate substitute for strong public protections and a government that acts on behalf of its citizens.

Sunday's Cleveland Plain Dealer ran an article by Stephen Koff highlighting a problem OMB Watch has been focusing on for the past few months: declining budgets and staffing levels at federal regulatory agencies.

As a result, agencies are finding it difficult to fulfill their missions, and regulatory failures like collapsing mines, recalled toys, and contaminated food dominate headlines. From the article:

The broader safety net - protecting children from dangerous toys, adults from tainted spinach and beef, factory workers from chemical dust that can sicken or explode, miners from underground passageways that collapse - has frayed, they say. The government's own records and statistics bear this out in many ways, showing shrinking agency budgets, personnel rosters that don't keep pace with inspection demands, and White House rejection of proposed safety rules.

As agency budget and staffing levels have shrunk, regulated entities have grown. In 1981, the Food Safety Inspection Service (FSIS) — the federal regulator in charge of meat, poultry, and egg products — employed about 190 workers per billion pounds of meat and poultry inspected and approved. By 2007, FSIS employed fewer than 88 workers per billion pounds, a 54 percent drop.

The Occupational Safety and Health Administration (OSHA) has also been unable to keep up with its responsibility to enforce safety regulations in the workplace. In 1980, OSHA had approximately three staff members for every 100,000 American workers. By 2006, it had only 1.5 staff members. In 1980, OSHA and state regulators conducted 1.77 inspections per 100,000 workers. By 2005, OSHA and the states conducted only 0.668 inspections per 100,000 workers — a 62 percent drop.

The resource shortfalls of the Consumer Product Safety Commission have been well-documented; but the situation appears even worse when comparing the agency's budget and staffing levels to one of the fastest-growing yet most dangerous products it regulates — all-terrain vehicles. In 1988, when CPSC began regulating ATVs after settling a lawsuit with manufacturers, the agency employed more than 36 staff members for every 100,000 four-wheel ATVs in use. By 2004, CPSC employed fewer than seven staff members for every 100,000 ATVs. Meanwhile, old regulations have expired and the Bush administration has stalled the development of new standards.

As Koff points out, the decisions by multiple presidents and congresses to shortchange federal agencies has undermined a long-standing national focus on public protection:

The result: The era of government as consumer protector, born of 1960s and '70s activism, has faded.

Find out more through OMB Watch's Bankrupting Government project.