• January 25, 2010
    Guest Post

    By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

    The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

    When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

    The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

    During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

    Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

  • October 5, 2009
    The U.S. Supreme Court today invited the Obama administration to weigh in on a case involving San Francisco's universal health care program. The case, Golden Gate Restaurant Association v. San Francisco, involves a challenge to a key provision of San Francisco's "Healthy San Francisco" law, which requires employers to provide minimum spending on their workers' healthcare insurance. The San Francisco law was challenged by the restaurant association in federal court, arguing that the Employee Retirement Income Security Act (ERISA) preempts San Francisco from requiring employers to invest in their employee healthcare benefits. The Bush administration got involved in the case lodging briefs supporting the restaurant association's position. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the San Francisco law concluding that it was not preempted by ERISA. The restaurant association has asked the Supreme Court to hear the case.

    San Francisco City Attorney Dennis J. Herrera issued a statement (above, right) on the high court's action today, urging the Obama administration to take different approach to the case.

    "The Bush Labor Department's position was not simply wrong as a matter of law, it was wrong for fundamentally ignoring the urgent need for health care reform," said Herrera, a member of the ACS Board of Directors. "I am hopeful that the new administration will not take such a knee-jerk position, but will instead thoroughly review the legal and policy implications of the case."

  • June 10, 2009
    Guest Post

    By Robert A. Schapiro, Professor of Law, Emory Law & Author of Polyphonic Federalism: Toward the Protection of Fundamental Rights

    It has been a good spring for federalism. In recent years, the doctrine of preemption has stood as a prime enemy of federalism and an obstacle to state efforts to promote health, safety and environmental protection. For that reason, President Barack Obama's May 20 memorandum limiting federal assertions of preemption comes as welcome news. That memo, along with an important Supreme Court decision in March, signals a turn away from an aggressive policy of administrative agency preemption and recognition of the value of concurrent state and federal regulatory initiatives.

    The basic principle of preemption, that state laws cannot interfere with the operation of the federal government, is an important and uncontroversial feature of our constitutional system. However, over the past 25 years, preemption has become a weapon to defeat state regulations aimed at improving health and safety, as well as state tort suits seeking to compensate victims of malfeasance. Back in 1992, the United States Supreme Court issued a fractured opinion in the Cipollone case, holding that federal regulation of cigarette labeling preempted some state tort actions against tobacco companies. In the succeeding years, the Supreme Court has found that law suits relating to seat belts, medical devices and other products must be tossed out because of federal regulation in the area.

    Some assertions of preemption have succeeded. Others have failed. The judicial doctrine has not been clear. In this confusing area, the position of the President and his administration has proved significant.

  • May 20, 2009

    In a memo released by the White House press secretary's office, President Barack Obama has announced his administration's policy "that preemption of State law by executive departments and agencies should be undertaken only with full consideratin of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." The Obama administration's move today was urged by Prof. David C. Vladeck in his January, 2008 ACS Issue Brief "The Emerging Threat of Regulatory Preemption."

    The announcement signals a clear break with the Bush administration's more heavy-handed policy. As explained by the Constitutional Accountability Center, who scooped the story on their blog Text & History:

    In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Today the Obama Administration recognized that states serve as "laboratories of democracy" and often are the most aggressive defenders of public health, safety, and the environment.