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Regulatory Preemption

One way the business lobby tries to avoid accountability when their products injure people is through regulatory preemption.  Preemption basically means that state or local law - for example, state tort law - is overriden by a federal law.  The federal government's power to override state and local law is derived from Article VI of the Constitution which says that federal law "shall be the supreme Law of the Land."

While there are some instances in which a federal law should override a state or local law, the business lobby has been arguing that if a regulatory agency merely sets a minimum safety standard, like requiring cars to have seat belts, corporations should be off the hook for any injuries their products cause as long as they met that minimum safety standard. 

Public Citizen believes that corporations should act responsibly, and should be held accountable when they negligently harm someone.  Corporations should meet the minimum rules set by regulatory agencies, but their duty does not stop there.

Corporations are in a much better position to know the dangers of their products.  While they may have to report the results of safety tests to agencies that issue rules, the corporations often only share what they want the federal agency to know.  Furthermore, over the years, the regulatory rulemaking process has become highly politicized - rulemaking agencies are often influenced not only by facts, but by politics.

When the Democrats won control of Congress in 2006, President Bush contacted his cabinet and asked them to find ways to institute conservative policies through regulatory measures, effectively bypassing Congress.  In early 2007, President Bush issued a new amendment to Executive Order 12866 , requiring a political appointee to oversee rulemaking for every agency.

In December 2006, Congress Watch Director Laura MacCleery addressed over 200 judges on the issue of regulatory preemption at the First Annual Judicial Symposium on Civil Justice Issues sponsored by the AEI-Brookings Joint Center for Regulatory Studies.

You can view the slide presentation from Laura's talk by clicking here (PowerPoint required).

    » congress | civjus | preemption

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