The Obama Administration's View on Preemption

By Brian A. Comer

On Wednesday, President Obama's administration released a two page memorandum that sets forth the current administration's view on preemption and the interaction of federal and state laws. A .pdf file of the memorandum can be found at the following link (I had to open this in a new window for it to work):

http://wsj.com/public/resources/documents/20090520preemption.mem.rel.pdf

In addition, the Wall Street Journal did a nice write-up of the implications of the memorandum and how the current administration's stance differs from the previous administration. That article can be found at the following link:

http://online.wsj.com/article/SB124285702885340713.html

In a nutshell, the memorandum recognizes that executive departments and agencies during the previous administration have sometimes announced that their regulations preempt State law, including the common law, without explicit preemption by Congress or "an otherwise sufficient basis under the applicable legal principels." Memorandum at 1. As stated by the current administration in the memorandum, "the general policy of [President' Obama's] administration [is] 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 sufficient legal basis for preemption." Id. (emphasis added). The memorandum directs that heads of departments and agencies should not include in regulatory preambles statements that they intend to preempt State law through a regulation except where such provisions are also included in the regulation. Id. Furthermore, such provisions should not be included "except where such provisions would be justified under legal principles governing preemption." Memorandum at 2. Finally, the memorandum directs heads of departments and agencies to review regulations issued in the past 10 years to determine whether any statements concerning preemption are justified. Id. If they are not, then the appropriate department or agency head should "initiate appropriate action, including amending the relevant regulation. Id.

In short, this administration is putting its own stamp on the preemption issue, and from the memorandum, it appears to be the opposite of the prior administration's views on this legal principle. What does this mean for products liability litigation in general? State law tort claims that were previously deemed "preempted" under federal law are more likely to be recognized as viable claims. Only time will tell, but it will be interesting to see the stance taken by the courts in light of the current administration's views.

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