Scholar/Authors Discuss Their Books on Preemption, Part Three

Editor’s Note: Following is the third of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee.  In December, both published books on the issue.  (The first blog post in the series includes some background on the issue.  The second discussed the very real impact the outcome of the debate has on individuals.)  McGarity’s book is The Preemption War: When Federal Bureaucracies Trump Local Juries.  Buzbee’s is Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question, and features chapter contributions from 15 experts, including Buzbee and McGarity, as well as a number of other CPR Member Scholars.

We asked Professors McGarity and Buzbee to discuss the books and the issue, and here’s the third installment of that conversation:

What's the outlook on preemption? Do we think the Obama Administration will take a different view than the Bush Administration, or will it even notice? And what do we think of prospects in the courts? Is there a legislative fix, or is that unrealistic?

Professor McGarity:  I am cautiously optimistic about the prospects for undoing some of the worst Bush Administration preemption actions in the next few years. I would be surprised if the issue became a high priority for the White House or Congress in the next few months. But I would also be surprised if some steps were not taken by the Administration or Congress or both during the next year or so.

The first place we are likely to see change is in the agencies that were responsible for creating the problem during the Bush Administration. As soon as the Secretary of Health and Human Services gets his or her team in place, I would hope that the Food and Drug Administration would attempt to reverse the Bush Administration's aggressive assertion of that agency's power to preempt and return to the agency's traditional position that state tort law serves as a useful complement to its efforts to protect consumers from dangerous drugs.

One action that FDA could take immediately is to issue a policy statement overruling statements made in several rulemaking preambles during the Bush Administration to the effect that FDA-approved labels preempt state failure to warn claims. Unfortunately, this may be of limited utility if the Supreme Court issues a broad ruling in favor of Wyeth in the Wyeth v. Levine case that I discussed in my answer to your second question. If that happens, then congressional action may be necessary.

Once they have new leadership, I would also expect agencies like the National Highway Traffic Safety Administration, the Federal Railroad Administration, and the Consumer Product Safety Commission to take less aggressive stances as well. Like FDA, they could issue policy statements or promulgate rules adopting the position that their actions do not preempt state common law claims.

President Obama could move things in the right direction by rewriting the current Federalism Executive Order (EO 13132) to instruct the agencies to implement a presumption against preempting state common law claims. The Center for Progressive Reform will soon be issuing a White Paper containing detailed suggestions for what should be included in the executive order.

Whether or not the individual agencies or the White House takes action, Congress can fix the problem if it is so inclined. Preemption is all about congressional intent, and Congress can overrule unfortunate judicial opinions by simply expressing its intent not to preempt with sufficient clarity.

I do not expect preemption to be a high priority in Congress at first, but an especially broad opinion by the Supreme Court in Wyeth v. Levine may inspire congressional action. My book urges Congress not to attempt to solve the problem in one fell swoop by enacting a single omnibus bill that applies to all of the federal agencies. Even if appropriately inclusive language could be drafted for such a bill, the opposition from affected industries and organizations like the Chamber of Commerce would be so fierce that it would be dead on arrival.

A forthcoming CPR White Paper will suggest some less drastic measures that Congress might enact to limit any remaining predisposition of federal agencies to preempt common law in the future.

Professor Buzbee:  I agree with Tom's observations, but have one additional hope for the new Administration and a few comments about climate change legislation.

Both by executive order and also on an agency-by-agency basis, I think the process preceding any agency claim of preemptive impact needs to be changed. Many of the Bush Administration's changes in policy in a more strongly preemptive direction were announced with little or no advance notice, opportunities for comments, or agency explanation of why preemptive impact was appropriate. Probably all scholars of regulation agree that some actions are and should be preemptive, but seldom will such an effect be obvious or beyond dispute. Agencies considering an announcement that an action or category of actions preempts state regulation or common law should do so with full, open and participatory process. As I've been advocating in conference settings over the past two years and now am more fully articulating in a forthcoming article, the factual and policy judgments underlying an agency's assertion of preemptive impact should be reviewed by courts under a variant of "hard look review." The new President and his department and agency officials can, by using open, transparent, and accountable process, open up the preemption choice to debate.

Between enhanced process preceding any claim of preemptive impact and, I hope, more rigorous judicial review of such claims, the effect should be to reduce opportunities for stealth tort reform or preferential treatment of special interests. Such changes would also reflect genuine respect for the sovereignty of states and benefits of allowing states latitude to develop law and innovate in areas also subject to federal law.

In addition, the executive branch in its litigation posture can and should take a position that agency claims of preemption are presumptively invalid or at least deserving of little or no deference if the power claim is preceded by no opportunity for public input. The Supreme Court has yet to articulate how such claims should be reviewed, so the positions taken by the Solicitor General's office and other government litigators will likely influence what the courts articulate about review of preemptive power claims by agencies. These shifts in policy would reduce the likelihood of ill-founded preemption claims, would reduce the risk that injured citizens would be left remediless, and would allow state regulators and tort systems to work in tandem with federal law to address harms and risks.

I think the biggest area where preemptive power claims need to be assessed is in forthcoming climate change legislation. Industry has begun to indicate support for federal climate change law, but often with the caveat that any federal law needs to preempt state law. Making federal law preemptive could, I think, be disastrous for climate change progress. First, it isn't even clear how a preemptive law could work since state and local governments always are involved in regulating pollution in their jurisdiction. Second, even if a federal law at the moment enacted is a spectacular piece of legislation passed by sagacious policymakers, it may turn out to miss opportunities for progress and, especially, discoveries about climate change may quickly reveal that the federal law is inadequate. If all other regulators are displaced by preemptive law, progress will be made only if federal legislators are rallied to act again. State regulation has often been key to motivating enactment of federal law that sets regulatory floors, plus state regulation has often revealed different and sometimes more effective means to achieve regulatory goals. More needs to be said about climate change preemption, which I'm glad to report will occur at a March 25 CPR conference on climate change preemption. I look forward to discussing these and related ideas in greater depth there.