States Losing Ability to Protect Public Due to Federal Preemptions

Despite the party's repeated use in recent years of states' rights rhetoric, the GOP-dominated Congress and Bush White House have been assiduously working to eliminate the ability of state governments to protect the public.

Preemption Through Congressional Act

A new compilation of congressional activity reveals that Congress has voted 57 times to preempt state law and regulations in the last five years, including preventing states from instituting health, safety, and environmental standards.

According to a report released June 6 by House Government Reform Committee ranking member Henry Waxman (D-CA), those votes have resulted in 27 laws overriding state laws and regulations, including 39 preemption provisions.

Many of those preemptions gut state standards for consumer protection, such as safeguards against food contamination, as well as environmental, health, and safety standards. The enacted preemptions also take power away from state courts and limit state choices in deciding social policies.

In perhaps the most famous example of preemption in the past year, both Congress and the Bush administration stepped into the dispute over the end of life decision for the family of Terry Schiavo. Despite the state court repeatedly upholding Mr. Schiavo's decision to remove the feeding tube for his wife who had been in a persistent vegetative state since 1990, Congress passed Pub. L. 109-3, bringing the family dispute to federal court "notwithstanding any prior state court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

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Preemptions passed by Congress include the following:

* Preemption of drug liability laws Cases against drug manufacturers for injuries are generally brought to court at the state level. The 2006 Department of Defense Appropriations Act (Pub. L. No. 109-148), however, severely limits the ability of claimants to sue for injuries caused by drugs or vaccines considered to be "countermeasures" against a flu or epidemic, as decided by the Secretary of Health and Human Services.

* Preemption of Firearms Trace System The 2006 Science, State, Justice, Commerce, and Related Agencies Appropriations Act (Pub. L. No. 109-108) limits state use of the Firearms Trace system, a database used by law enforcement officers to identify guns routinely used in violent crime or disproportionately associated with accidents. The provision bars state and local law enforcement agencies from using the database to track gun use for anything other than a criminal investigation.

* Preemption of laws limiting SPAM The 2003 CAN SPAM Act overrides laws in 38 states that protect against unsolicited email messages. The federal law is much weaker than many of the state standards that require consumers to affirmatively "opt-in" before receiving commercial messages.

* Preemption of vicarious liability laws The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. No. 109-59) overrides state laws that hold the owner of a vehicle liable for an accident when the car is driven by a renter or a lessee. In states with high tourism and high car rentals, it is often required that the owner of the vehicle be held liable in order to protect accident victims in cases in which the vehicle is insured but the actual driver is not. At the time the law was enacted, sixteen states had such laws.

* Preemption of open government laws The Homeland Security Act of 2002 created the new Department of Homeland Security (DHS), the biggest government reshuffling since 1947. The law also contained a section entitled Critical Infrastructure Information (CII), intended to create incentives for companies to "voluntarily" submit information about the vulnerabilities of "critical infrastructure." To accomplish this result, the law preempts state and local disclosure laws and creates an overly restrictive information program that will provide corporations secrecy and immunity, and prevent state government action to protect the public.

* Preemption of environmental law Energy Policy Act of 2005 (Pub. L. No. 109-58) scraps state and local government's authority over environmental and land use policy. For example, the act limits the extent to which states can require cleaner burning fuels in automobiles. The bill also takes the authority to approve the siting of transmission lines out of the hands of state and local government.

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Preemption Through Regulation

Not only is state authority being threatened by congressional action, but the White House has also limited the role of the states through regulation and executive decisions. Perhaps the most troubling trend in regulatory preemption is being called "stealth tort reform"--the decision to preempt the ability of state courts to hear tort suits arising from cases covered by the federal regulation. U.S. PIRG has been documenting many such cases.

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