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WASHINGTON – President Barack Obama has issued a memorandum to federal agencies warning them against adopting blanket regulations announcing that they preempt state laws.

“The purpose of this memorandum is to state the general policy of my Administration that preemption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption,” said the memorandum sent to the heads of federal agencies.

Obama noted that despite an existing executive order discouraging the practice, “executive departments and agencies have sometimes announced that their regulations preempt state law, including state common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.”

Obama’s memo directs agency heads to refrain from adopting preemptive language in regulatory preambles and from adopting regulations with language preempting state law without legal justification.

The memo also instructs all agency heads to “review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt state law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption.”

Les Weisbord, president of the trial lawyers’ group the American Association for Justice, said he was heartened by the memo.

“The memo overturned actions taken by Bush administration bureaucrats who were influenced by powerful, well-connected corporations who wanted to re-write and re-interpret Congressional legislation, undermine the Constitutional system of checks and balances, put the public at risk and compromise laws designed to give Americans basic rights to hold wrongdoers accountable,” Weisbrod said in a statement.

But, he said, more needs to be done.

“[H]orrendous injuries and deaths are still happening from dangerous products,” Weisbrod’s statement said.  “For that, we look to Congress to remedy those wrongs and they can start by passing the Medical Device Safety Act.”

-Kimberly Atkins

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