The American Constitutional Society has published a white paper about real action versus professed belief of administrative fiat. Transparency is not part of either.
The Bush Administration has been quietly waging a campaign to dramatically reconfigure American tort law by claiming that routine regulatory action taken by federal agencies has the effect of preempting state law damages claims. The campaign has been remarkable not just because of its scope, but also because it has attracted virtually no public attention.
Why has the campaign gone essentially unnoticed? Because the Administration does not seek to change tort law through transparent means, like the enactment of a federal law or the adoption of regulations. Instead, it has resorted to simply including statements in lengthy and obscure preambles in Federal Register notices that regulatory action taken by an array of federal agencies — the Food and Drug Administration, the National Highway Traffic Safety Administration, the Consumer Product Safety Administration, to name a few — broadly preempts state law. One commentator has aptly dubbed this campaign “preemption by preamble.”
The concern here is not with agencies expressing their position on the preemptive effect of their regulatory actions. That is unobjectionable, and, in many instances, unavoidable. What is objectionable is that agencies are making substantive preemption determinations in a way that is neither transparent nor democratic, and are doing so because the Administration has determined that insulating big business from tort litigation is right as a matter of federal policy. Invariably, in making these pro-preemption determinations, the agency is repudiating longstanding agency policy to the contrary.
This White Paper is intended to serve two purposes: First, to inform readers that this campaign is well-underway and sketch out, albeit briefly, some of the serious policy implications that it raises; and second, to explain why making preemption determinations by regulatory fiat raises serious separation of powers and agency capture concerns.
1. What is happening to our flamer’s favorite remedy?
2. Agency capture is an interesting term.
3. Who is swallowing whom?