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Thursday, January 17, 2008

The Bush Administration's Attacks on State Law

In a new article written for the American Constitution Society, Georgetown law professor David Vladeck examines a toubling yet underreported tactic the Bush administration has been using to undermine public health and safety protections: federal preemption of state tort claims.

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 they are harmed by a product. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

The Bush administration is consistently conflating these two types of laws. In the article, "The Emerging Threat of Regulatory Preemption," Vladeck goes over several case examples in which federal agencies have written regulations that they claim "preempts" state tort law, thereby making it impossible for citizens to seek damages on products regulated by the federal government.

Preemption language has been included in all sorts of product safety regulations that cover everything from cars to mattresses. One FDA regulation preempts damage claims if a drug maker fails to warn consumers of a certain risk, so long as the drug has received FDA approval. In addition to robbing consumers of their right to sue, drug makers would have no motivation for monitoring the safety of their drugs after FDA approval.

Why would the Bush administration engage in such a broad attack on state law? One reason, Vladeck argues, is to help industry allies:

[T]here have been repeated charges that the regulators implementing this pro-preemption campaign have deep ties to the industries that will benefit. For example, the architect of the Food and Drug Administration's new preemption position is a partner at a major law firm where he specializes in representing drug companies regulated by the FDA — the very companies that benefit from the agency's new pro-preemption position.

As if the public health and safety ramifications of the campaign to render state law impotent was not enough, the administration is implementing these policies surreptitiously and undemocratically:

[A]gency decisions to extinguish common law remedies are not made in a transparent way. Agencies simply announce their conclusions in preambles, which are lengthy and jargon-filled explanations of agency regulatory action. Agencies do not go through notice and comment rulemaking to formulate their positions…Nor do agencies…provide states and local governments with notice and an opportunity to participate in any proceeding that may affect state and local law.

Read Vladeck's article here.