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The OSHA nominee, preemption and the Second Amendment

In an Overlawyered.com post, "David Michaels and Gun Control," Walter highlights the "strong views on firearms issues" from the President's expected nominee to head the Occupational Safety and Health Administration, epidemiologist and left-leaning public health activist, David Michaels. In an entry at the public health blog, The Pump Handle, Michaels had written passionately about guns as a workplace safety issue (and attacking the NRA in the process).

So if a Nashville restaurateur wants to ban guns from his business, it's safe to say Michaels would have his back. But what if the restaurant owner argues the case as a matter of federal preemption? After all, the Obama Administration is busy ridding federal regulations of preemption language.

From The Tennessean newspaper of Nashville, an article, "Nashville restaurateur seeks quick ruling on guns lawsuit":

Nashville restaurant owner plans to ask today for a quick decision in his lawsuit challenging the new state law that allows guns in restaurants and bars.

Randy Rayburn, who owns Sunset Grill, Midtown Cafe and Cabana, and his fellow plaintiffs will file a motion in Davidson County Chancery Court seeking summary judgment in the case, attorney David Randolph Smith said Friday.

Smith said the law, which took effect last month, creates unsafe workplaces, violating federal occupational safety and health laws.

"We're moving for summary judgment on the idea that state law is pre-empted by OSHA," he said.

So preemption serves the public health and safety goals that Michaels embraces, but President Obama, who will nominate him, opposes preemption.

And so does the plaintiffs' bar, which helped fund the creation of the Project on Scientific Knowledge and Public Policy, which Michaels heads. SKAPP's policies closely align with those of the American Association for Justice, which campaigns against preemption as hostile to justice and wealth redistribution through litigation.

The only way to resolve these tensions? Ad hoc arbitrariness! Just what the nation needs in regulatory policy.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.