Preemption: A New Day

Three days ago, on May 20, 2009, President Barack Obama, through the White House Office of the Press Secretary, released a “Memorandum for the Heads of Executive Departments and Agencies” regarding preemption. White House Preemption Memo (May 20, 2009)

President Obama’s announcement stands in stark contrast to the policies of the last administration and sends a clear signal that preemption of state-common-law-based product liability actions is no longer the favored philosophy of our country’s leadership. The memorandum restores some fundamental conceptions of federalism, namely, the centuries-old understanding that states operate independently of the federal government. And the memorandum makes clear that agencies are not to attempt to usurp Congress by announcing or declaring the preemptive effect of the regulations under which they operate – at least not without some legal basis.

In one of the several highlights of the publication, President Obama explains:

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. … As Justice Brandeis explained more than 70 years ago, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

See White House Memo, at 1.