The Washington Post published an important op-ed last week on preemption that did not seem to get much traction in the blogosphere. Perhaps because it was about preemption.
The piece, "Obama vs. the Regulators -- A Little-Noticed Decision Undercuts Health and Safety Rules," was by written Jeff Rosen and Jay Lefkowitz, litigation partners at Kirkland & Ellis and former OMB general counsels during the last Bush Administration. In it, they draw attention to President Obama's May 20 "Memorandum for the Heads of Executive Department Agencies," which instructs Executive Branch agencies not to include any preemption language in regulatory preambles and to review the past 10 years' worth of regulations for preemption language:
It may all sound very technical, but the consequences of Obama's new policy are broad and serious. When federal health and safety regulators issue rules, they base them on scientific analysis and conduct cost-benefit analyses of their overall impact. By contrast, state court juries may establish rules based on the unusual facts of a single case that could have terribly detrimental implications if applied more broadly. It is important, therefore, that the work of government health and safety experts has actual legal effect and not be just for "show." Taxpayers are footing the bill for these regulators, and the national standards they issue are supposed to be effective and binding.
The memo's stated reason is "federalism," but as the authors note, the memorandum misrepresents Justice Brandeis' thinking on the issue. The authors also wonder at the lack of attention toward this sweeping regulatory instruction; elsewhere Rosen has noted that the issuing of a memorandum - as opposed to an executive order - probably lessened the media's interest, which was, of course, the point.
The Obama Administration has already demonstrated its clear opposition to preemption, specifically the Bush Administration's practice of including preemption language in regulatory preambles. The National Highway Traffic Safety Administration's* roof strength rule (promulgated April 30, published in the Federal Register May 12) abandoned the proposed rule's preemption analysis and instead states:
Implied Preemption. We have reconsidered the tentative position presented in the NPRM. We do not foresee any potential State tort requirements that might conflict with today's final rule. Without any conflict, there could not be any implied preemption.
One wonders who exactly benefits from a haphazard, state-based regulatory regime.
From the American Association for Justice, a news release, April 9, "AAJ Calls on New NHTSA Chief to Address Roof Crush Standard," with the sub-head, "Remove Preemption from Old Proposed Rule." The Naderites at Public Citizen had also lobbied against the roof crush standard proposed by the Bush Administration.
* Corrected earlier wrong version of NHTSA's full title.