The Problem: The use of federal “preemption” to eviscerate state laws providing stronger public health and safety protections, replacing them with federal laws that favor corporate special interests
Under the Supremacy Clause of the United States Constitution, where federal and state law directly and irreconcilably conflict, federal law prevails.(1) When there is no direct conflict, state or local laws apply unless Congress explicitly has stated its intention to preempt them.(2) At times throughout this nation’s history, the preemptive power of federal law has served as a major force for positive change. For example, federal civil rights legislation helped strengthen American civil rights by outlawing discriminatory practices that many states’ laws would have allowed.(3) Today, however, preemption is increasingly used as a weapon to undermine state laws protect the public health and safety, and to eliminate provisions allowing persons to take violators of these laws to court.
The danger of preemption lies in its capacity to undermine consumer-friendly state or local laws and remedies that advance public health, safety, and other important public policy goals in favor of weaker federal laws that provide lesser or even no oversight of powerful actors like large corporations. In addition to preventing states from requiring higher standards for consumer safety and other laws, federal preemption of state law removes the compensatory element of the civil justice system.(4) The Center for Progressive Reform explains:
Since federal health and safety laws are primarily prescriptive, they generally do not provide compensation for those injured by regulated entities. Preemption therefore deprives injured consumers and patients of their right to recover for harms wrongfully perpetrated against them. Moreover, taxpayers will end up picking up medical and other expenses of increasing numbers of injured persons because they will be unable to obtain tort compensation and will not be able to pay for the resulting medical expenses out of their pockets.(5)
The public pays the price when these preemption arguments prevail. Over the past fifteen years, corporations have argued with increasing frequency that courts should shut their doors to citizens with state law claims when corporations satisfy the standards of weaker federal laws.(6) This is called the “implied preemption” argument because it applies preemptive power to a federal law or regulation despite the absence of an express statement from Congress of its intent to do so. When corporations have been successful, implied preemption has severely weakened important areas of the law that are designed to protect American citizens, including predatory lending laws, HMO accountability laws, highway safety regulation, drug safety rules, and civil rights laws.(7)
A recent example involves a medical device company’s effort to preempt state product liability law with lax FDA regulation.(8) A recent publication by Public Citizen summarizes the case:
After suffering serious injury when a balloon catheter burst while he was undergoing an angioplasty procedure, Charles Riegel and his wife sued the catheter’s manufacturer, Medtronic, Inc. Medtronic moved to dismiss the lawsuit, arguing that the Food, Drug, and Cosmetic Act expressly preempts state-law damages actions brought by patients who have been injured by medical devices that received pre-market approval from the Food and Drug Administration.(9)
Other examples of preemption conflicts include patients’ claims against pharmaceutical corporations over deceptively labeled prescription drugs that nevertheless met FDA approval, consumers’ claims against manufacturers over flammable furniture that met Consumer Product Safety Act guidelines, and car passengers’ claims against manufacturers over automobiles with life-threatening defects that met National Highway Traffic Safety Administration regulations.(10) The federal agencies charged with regulating these products, staffed increasingly with former industry executives, have become active in urging courts to accept implied preemption arguments.(11) They have filed amicus briefs in support of corporate defendants and issued rules that state an intention to preempt, although Congress is the exclusive governmental entity with this authority.(12)
This past year, the American public has been bombarded with news headlines of under-regulated products entering into the market and harming people.(13) As it becomes increasingly clear that federal agencies, constrained by inadequate budgets and industry-biased administrators, are not protecting the public, it is important that state and local authorities have the power to enact effective laws and regulations to protect their citizens. Unfettered preemption undermines the democratic process by wresting this power from the hands of the elected state and local officials who were chosen to represent the interests and needs of their constituents. If state and local laws cannot be enforced in the state courts, they become merely symbolic, and symbolism provides little comfort to an injured person who thought he or she was protected by state law.
The Policy Proposal: Anti-Preemption Law to Outlaw “Implied Preemption”
Americans need a federal anti-preemption bill that requires Congress to state explicitly whether it intends for federal legislation to preempt state law. This anti-preemption legislation should require Congress to determine whether preemption will have a negative impact on states’ protections to citizens. This would restore states’ ability to protect the public through their own local laws and regulations, and would preserve citizens’ right to compensation when companies violate those regulations.
A previous attempt at this type of legislation was made by Senator Carl Levin (D-MI) and others through the Federalism Accountability Act of 1999. The bill would have eliminated implied preemption by requiring an explicit indication from Congress of its intent to preempt state law unless the federal law and state or local law are in direct, irreconcilable conflict. In his introduction of the bill, Sen. Levin wrote:
Enactment of this bill would close the back door of implied Federal preemption and put the responsibility for determining whether or not State or local governments should be preempted back in Congress, where it belongs. The bill would also institute procedures to ensure that, in issuing new regulations, federal agencies respect State and local authority…(14)
This bill did not pass. However, in the years that have lapsed since the bill’s introduction, and especially in the past several years, new preemptive efforts have added to the urgency and relevancy of this type of legislation. The next President must urge Congress to thoroughly consider the impact preemption would have on the public’s health and safety before explicitly giving federal law preemptive effect over state law. She or he should also encourage Congress to oppose any preemption attempts by the federal agencies that could ultimately threaten the health and welfare of the American public.
Recent opposition by Democrat and Republican members of Congress to a section of the 2007 Homeland Security spending bill, which would have preempted state chemical security laws, is a positive example of what Congress can do to prevent harmful preemption. Congress opposed the FY 2007 Homeland Security spending bill because it gave the Department of Homeland Security authority to override stricter state laws regulating the chemical industry.(15) Noting that the bill would undermine states’ ability to ensure that state residents are safe, Senator Frank Lautenberg (D-NJ) introduced FY 2007 Supplemental Appropriations Bill. Despite strong opposition from the chemical industry, the Senate passed the bill, which protects states’ right to impose stronger chemical security laws than those provided on the federal level. The next President should support Congressional efforts like this and encourage Congress to continue to take all necessary steps to prevent preemption that poses a threat to the public’s health and safety.
(1) U.S. CONST. art. I. § 2.
(2) See, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 239 (1074); Arnold v. City of Cleveland, 616 N.E.2d 163. (“When considering the constitutionality of a [state or] local ordinance under the Supremacy Clause, we start with the fundamental principles that the ordinance in question is… not to be assumed to be displaced by federal law absent a clear and manifest purpose of Congress.”)
(3) 79 Stat. 427 (1965), 42 U.S.C §§ 1971, 1973a-p
(4) William Funk, Sidney Shapiro, David Vladeck, and Karen Sokol, The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety, Center for Progressive Reform White Paper #704, 10 (September 2007).
(6) See, Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). Since this decision, the implied preemption argument has become increasingly popular among defendant-corporations and defendant-industries.
(7) See, Emily Gottlieb, Corporate Empowerment and the Decline of Public Safety. Center for Justice and Democracy White Paper No. 14, (Center for Justice and Democracy, August 2007).
(8) Riegel v. Medtronic, Inc. No. 06-179 (U.S. Sup. Ct.) (pending).
(9) Public Citizen Litigation Group, available at www.citizen.org/litigation/forms/scap_index.cfm#Pending
(10) William Funk, Sidney Shapiro, David Vladeck, and Karen Sokol, The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety, Center for Progressive Reform White Paper #704, (Center for Progressive Reform, September 2007).
(11) Emily Gottlieb, supra note 45, 5-8.
(12) Supra. See also Cindy Skrzycki, “Trial Lawyers on the Offensive Fight Against Preemptive Rules, (WASHINGTON POST Sept. 11, 2007).
(13) See, e.g., (AP) “Fisher Price Recalls 1M Toys,” (CNN.COM August 2007); Dana St. George and Annie Gowen, “Anger Grows Over Tainted Pet Food: Tests Find Rat Poison in Some Cat and Dog Products,” (WASHINGTON POST, PA01 Mar. 24, 2007); Walt Bogdanich, “Toothpaste Containing Poison is Found in U.S.” (WASHINGTON POST June 2, 2007); “21.7 Million Pounds of Beef Recalled,” (CNN.COM Sept. 30, 2007).
(14) See Federalism Accountability Act, S. 1782, 106th Cong. (1999). Introduced by Sen. Carl Levin, available at http://www.senate.gov/~levin/newsroom/release.cfm?id=211135
(15) Homeland Security and Governmental Affairs Committee Chairman Sen. Joseph Lieberman, (I-Conn.), Susan Collins (R-Maine), and Sen. Frank Lautenberg, (D-N.J).