During the Bush administration, and its do-anything-help-big-business approach, agencies were required to insert "preemption" language into all regulations, rules, and policies that  the agencies promulgated.  This was intended as an attempt to "protect" corporations from state laws and regulations that had the effect of imposing stricter requirements, especially with regard to product safety.  One big "win" for this approach was the U.S. Supreme Court decision in Reigel v. Medtronic, which held that people injured by a medical device "pre-approved" by the FDA could not file a lawsuit claiming that the device was defective as a matter of state law.  A not so successful attempt to use preemption for food cases was that tried by the Excel Corporation in litigation arising from an E. coli O157:H7 outbreak linked to a Milwaukee-area Sizzler restaurant. In those cases, Excel argued that its admittedly contamianted meat was neither defective nor unsafe because USDA policy at the time only prohibited this deadly pathogen from being in ground beef. (For an op-ed piece I wrote about this USDA policy, see Who does the USDA Really Protect, which can be found here: www.marlerblog.com/2008/08/articles/lawyer-oped/who-does-the-usda-really-protect-when-it-comes-to-deadly-e-coli/)

But now most of the arguments in favor of preempting state law in favor of "uniform" federal regulations are going to be undercut by a just-issued Executive Order that declares a new (or renewed) era of states rights.  The introductory paragraph of the Order is telling and compelling:

From our Nation’s founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government’s role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

Not only does this Order announce a new direction, it requires the heads of all federal agencies to "review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law," and to remove them.  So once more the role of the state in protecting its citizens from unsafe food and other products is restored to its rightful place.  More importantly, the next time that a big food company argues that the USDA said it was okay to poison people, it will likely get laughed out of court. Or at least we can hope so.

To read the full text of the Executive Order, please click on the Continue Reading link.

THE WHITE HOUSE
Office of the Press Secretary
 

For Immediate Release May 20, 2009
May 20, 2009
 

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Preemption
 

From our Nation’s founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government’s role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
 

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
 

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
 

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
 

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
 

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
 

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget’s Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
 

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
 

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
 

BARACK OBAMA