New England Biz Law Update
The issue of federal preemption of state claims is a hot-button topic in the nation’s capitol.
As the U.S. Supreme Court prepares to take on the question in several cases this term, lawmakers recently held a hearing on whether federal agencies are encroaching on territory reserved for state lawmakers and judges.
At a Senate Judiciary Committee hearing called “Federal Preemption: Are Federal Agencies Usurping Congressional and State Authority?” committee Chairman Sen. Patrick Leahy, D-Vt., assailed the Bush administration for what he called a concerted effort to impose federal rules.
“When this administration attempts to override the efforts of state authorities to provide meaningful health and safety and consumer protections, all Americans are more vulnerable,” Leahy said.
A spokesman for the Office of Management and Budget denied a campaign by President George W. Bush to push a new policy of federal preemption, stating that the same positions have been taken by both Republican and Democratic administrations in the past.
But at the hearing, several speakers said preemption language in rules over the past several years – including federal regulations by the Food and Drug Administration, the National Highway Transportation Safety Administration and the Consumer Product Safety Commission – evidences a shift to strong federal control, tying the hands of state officials.
However, others defended federal preemption as a vital tool to ensure the safety of consumer goods and protect the economy.
At the hearing, Leahy said that in 2005 he and committee ranking member Sen. Arlen Specter, R-Pa., wrote a letter to federal transportation officials voicing concern over language in roof crash safety standards that would preempt several state laws and, the lawmakers said, went beyond the agency’s authority under the Transportation Equity Act.
“Unfortunately, the federal agency’s response did nothing to address our questions about its authority to override state laws that may compensate motorists critically injured in car accidents,” Leahy said at the hearing.
“Those roof crush regulations are just one example of at least a dozen issued by the Consumer Product Safety Commission, the Department of Homeland Security, the Food and Drug Administration and other federal agencies that are being used to shield drug and other product manufacturers from liability without Congressional action,” he stated.
Delaware state Rep. Donna D. Stone, who is the president of the National Conference of State Legislatures, said the group has been tracking federal preemption efforts and publishing them in its periodical “Preemption Monitor,” which was started recently to bring attention to the issue.
“As a result of federal preemption, a large part of the policy jurisdiction of state legislatures and of city and county officials has been lost,” Stone testified. “States and localities cannot legislate in response to their citizens’ needs when the federal government has preempted the policy field. What is lost is the capacity for regional and local self-government.”
But Alan E. Untereiner of the Washington, D.C. firm Robbins, Russell, Englert, Orseck & Untereiner called federal preemption “critically important to the business community and the health of our national economy.”
Untereiner, who spoke on behalf of the U.S. Chamber of Commerce and the Chamber’s Institute for Legal Reform, claimed the debate over federal preemption improperly focuses on the relatively small problem of state law tort claims occasionally being preempted.
In most cases, he said, the doctrine of preemption is a beneficial tool, giving court systems, industries and agencies alike clear rules for establishing safety standards and protections for businesses and consumers.
The doctrine of federal preemption creates a “single set of uniform rules for the entire country, it streamlines the legal system, reduces the regulatory burdens on businesses, and helps to create a unified national marketplace for good and services,” Untereiner said.
But Collyn Ann Peddie, a trial and appellate attorney at the Houston firm of Williams Kherkler Hart Boundas, said federal preemption often usurps an important legal tool for consumers – the right to file suit to seek redress after being harmed.
“Congress and the courts have traditionally recognized that private tort claims play an important role in ensuring that drugs are safe and that drug companies continue to improve their products,” Peddie testified. She added: “The critical role private lawsuits play will be lost if such claims continue to be preempted.”
Legislative solutions proposed
Stone urged lawmakers to enact legislation that would codify an existing federal Executive Order, E.O. 13132, which was put in place by President Bill Clinton in 1999.
She said that while the order is meant to help protect the interests of states for federal officials considering preemptive measures, it is ineffective in its current form because executive orders are only advisory in nature.
The state lawmakers’ group is pushing for legislation that would:
But Untereiner said lawmakers should tread carefully in altering the system of federal preemption with legislation, because doing so would have implications far beyond issues of state law litigation.
“It is difficult to see why Congress would want to codify such restrictions on its own authority to exercise its legislative powers,” he testified. “If Congress’s intent is the touchtone of preemption analysis, then why would Congress wish to put a distorting thumb on the scale of the inquiry into that intent?”
High court to weigh in
The Supreme Court this term will consider preemption in a number of contexts this term.
In one case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, the court will assess whether the Federal Aviation Admin-istration Authorization Act preempts states from using their police powers to require shippers of tobacco to verify the age of delivery recipients.
In Riegel v. Medtronic, No. 06-179, the court will determine whether FDA regulations preempt state negligence claims involving medical devices. The plaintiff in that case sued a medical device manufacturer, claiming injury after a catheter balloon burst during an angioplasty procedure.
A petition for certiorari is also pending in Wyeth v. Levine, No. 06-1249, which raises a similar issue: whether the FDA’s regulations preempt state claims involving prescription drugs. The court has asked the U.S. Solicitor General to file a brief in the case, suggesting certiorari will likely be granted.
