ABA Makes a Positive Step with Resolution on Agency Preemption

by Bill Funk

August 13, 2010

In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.

Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures that should accompany any decision to preempt state tort law. The resolution urges that when Congress considers preempting state tort law it should take into account the historic responsibility States have exercised over the health and safety of their populace and to balance that responsibility against the competing concerns for national uniformity. Moreover, Congress should as a regular matter address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to affect state tort law. It should clearly and explicitly state when it intends to preempt state tort law and clearly and explicitly set forth the extent of the preemption it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort law. All too often Congress has not spoken clearly, leaving to courts or agencies the federalism balancing that properly lies in the domain of Congress.

With respect to federal agencies, the ABA’s resolution announced its support of the principles and requirements of Executive Order 13132 on Federalism regarding federal agency actions that may have preemptive effect on state tort law. That executive order was adopted by President Clinton, based upon an earlier order adopted by President Reagan, and it has been continued by both Presidents George W. Bush and Barack Obama. That order outlines procedures which executive agencies should follow when they propose to preempt state law, in particular the need to proactively involve state and local officials and to obtain public input. 

The ABA’s resolution, however, goes beyond the order by specifying some additional procedures which experience suggests would aid in the resolution of preemption issues. First, it calls upon the President to require each executive agency to state in any proposed rulemaking whether it intends or believes the rulemaking to have the effect of preempting state tort law, to explain the scope of the anticipated preemptive effect and why it is appropriate or legally required. Second, it urges the President to require each executive agency either to provide factual support in the record for any assertions that state tort law is currently interfering or has in the past interfered with the operation of federal law or to supply reasoning to support any predictions that state tort law would in the future interfere with the operation of federal law. In the past, the failure to build an adequate record to support preemption has resulted in judicial reversals of agency preemption determinations.

In addition, the ABA resolution urges the President to consider requiring an entity independent of the regulatory office proposing preemption to be involved in the rulemaking procedure. The resolution leaves to the President to determine the appropriate entity; it might be the Office of Information and Regulatory Affairs in the Office of Management and Budget, which already reviews rulemakings for compliance with E.O. 12866; it might be an office in the Department of Justice; or it might be an entity in the rulemaking agency itself, such as the regulatory compliance officer, which each executive agency is required to have. 

Finally, the ABA asks independent regulatory agencies, which are not subject to E.O. 13132, to comply voluntarily with its requirements as well as the procedures specified in the ABA’s resolution. 

In short, these recommendations, if followed, would go a long way to improving decisions about preemption. They would focus the right actors on the correct issues, reduce ambiguity, and avoid judicial determinations about what in essence is a political decision.

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William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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