Preemption and the Decline of States' Rights

    In an astute editorial observer column in the May 23, 2008, edition of the New York Times, Adam Cohen describes the ascendancy of the doctrine of federal preemption under the Bush Administration that has crippled, in some cases prevented, states from being able to protect their citizens.  The Bush Administration has run rough shod over the traditional Republican assertion of "states' rights" to prevent, by the doctrine of federal preemption, states from protecting their citizens. 
    Consumers have been harmed by the Bush Administration's assertion of preemption in a number of areas.  As states mobilized in response to a spike in predatory lending, the Bush Administration's Office of the Comptroller of the Currency issued rules negating state predatory lending laws over the protests of all 5o state banking superintendents, Republican and Democrat.  The 2003 Medicare law prevents states from regulating abuses by private Medicare insurance plans.  The National Association of Insurance Commissioners, which represents the insurance regulators in all 50 states, protests that states no longer have the ability to protect sick, elderly customers.
    States' ability to conserve their resources has also been curtailed by the Bush Administration.  California's laws curbing greenhouse gases from new cars and trucks were blocked by the Environmental Protection Agency. 
    The Bush Administration has rewritten more than 50 federal regulations that will make it much more difficult and in many instances impossible for consumers to sue corporations responsible for unsafe food, drugs and other dangerous products.  An example is a suit brought by the actor Dennis Quaid and his wife, who claim that confusing packaging on a blood thinner caused large doses to be mistakenly given their newborns at the hospital.  Their suit was thrown out of court, because, under the doctrine of preemption, the manufacturer's compliance with Food and Drug Administration labeling requirements barred any lawsuit. 
    What's the upshot of all this?  Cohen describes it right on:  "Manufacturers are more likely to make unsafe products if they know a customer who is injured or killed cannot sue." 

Robert L. Abell
www.RobertAbellLaw.com