President Barack Obama is pledging to restore the federal government's respect for state laws. His Office of Management of Budget issued a memorandum to federal agencies today that offers a rebuke to his predecessor's policy of preemption. Preemption is legal -- this is a decided point of constitutional law -- but how and when the government can pre-empt state law a point of debate. According to Obama administration officials, President Bush's lawyers would preempt state laws where it was not legally justified, and would do so in a manner not consistent with the Supreme Court's guidance and previous executive orders. 2009preemption.mem.rel.pdf
The issue gets us into the weeds of federalism, but an administration official told me that "we put it in the category of on the very long check list of things that need to be cleaned up from the last administration."
Routinely, according to the OMB memo, agency heads would announce that their new regulations would preempt state law even before the wording of those regulations was finalized. That practice will end.
The memo orders agency heads to look at ten years worth of regulations to determine whether preemption statements "are justified under applicable legal principles governing preemption."
The goal is to reverse preempetion statements where the Bush administration "wasn't playing by the rules," according to an administration official.
The Bush administration (and, it must be said, Congress) used preemption to restrict the degree to which states could allocate money given to it by Congress for children's health insurance and to prevent states like California from setting their own admissions standards. It interpreted an FDA rule to prohibit states from suing drug companies on so-called "failure to warn" matters. It even interfered in state roofing regulations.
Advocates of preemption, including most corporate lobbies, argue that setting one standard for all is more efficient and more fair for consumers and businesses.
Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.