President Obama Reverses Bush Administration's Preemption Policy
In a bold and sweeping policy memorandum issued late yesterday, President Obama reaffirmed the critical role that state and local governments play in our constitutional system. The President's memorandum directs executive branch officials to review every regulation adopted in the past ten years to scrub them of inappropriate preemption language.
In an assault on federalism and our Constitution, the Bush administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Yesterday, the Obama administration recognized that states serve as "laboratories of democracy" and often are the most aggressive defenders of public health, safety, and the environment.
This action follows Tuesday's decision to adopt California's automobile emissions standards at the national level -- a perfect example of how our country benefits when states act as policy innovators. The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House this week showed our country at its best.
In December, we at the Constitutional Accountability Center (CAC) joined a coalition of organizations on a letter asking then-President-Elect Obama to review and reject the Bush administration's preemption policies. Before the Supreme Court, CAC also successfully advocated for a rejection of Bush-era regulatory preemption in Wyeth v. Levine, a case where the Supreme Court slammed the Bush Food and Drug Administration for trying to trump state consumer protection laws by including preemptive language in regulatory preambles. Combined with the Supreme Court's Wyeth opinion, yesterday's memorandum is the last nail in the coffin for Bush-era preemption policy.
Cross-posted at Text & History.
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What does this headline have to do with this post? There's nothing in here about reversal of the Bush Doctrine of Pre-emptive attack on nations we fear might attack us.
"In what respect Charlie?"
I'm confused. Repubs say the national government can override the states when it comes to food-inspection standards, pollution and emissions standards, and education -- but when it comes to accepting stimulus money, the states are so sovereign that they can secede.
HuffPo liberals really need to double think this one. I know there is a tendancy to assume that 100% of everything Bush did was wrong and must be undone, but since when have liberals been in favor of reducing the Federal governments ability to enforce nationwide standards and rules for our very mobile society. Certainly not for abortion rights, civil rights, equal opportunity protections, gay rights, environmental laws, etc.....
Just because it worked out in this one instance to have CA preempt the Feds on gas milage standards, does not mean the exception proves the rule. It does not.
"I know there is a tendancy to assume that 100% of everything Bush did was wrong and must be undone..."
Name me ONE THING Bushie did right.
*crickets*
"[B]ut since when have liberals been in favor of reducing the Federal government's ability to enforce nationwide standards and rules for our very mobile society?"
Bushie GUTTED the federal government's ability to enforce nationwide standards, when it inconvenienced the fat cats.
This clown not only didn't protect us from Al Qaeda and anthrax attacks, he didn't even protect us from lead-painted toys and salmonella-tainted peanut butter.
Dear President Obama,
Thank you for protecting us from the policies, ideas, and philosophy of men like Geore W. Bush.
awesome
Bottom Line - he is taking CA's lead and saying all States should follow. Not only that, he is taking Federal Government out of Local and State Government. Isn't that what the Rebugs have been saying that they wanted? Less "big brother" in Local and States? Well here you are. But now we know that the GOP are liars. Bush/Cheney and the Rebugs have always put in little things that would allow Feds to have a say in locals and states without you the American people, aware.
Say what??? He is not taking CA's lead and suggesting the other 49 States follow. He is mandating that the other 49 States follow. How is this not a form of preemption by the Federal government. This is not a laboratory of democracy. This is the heavy hand of the Feds. Now, I happen to like this particular decision, so this is not my fight, but it is a bit hypocritical to act like some kind of champion of state's rights. I am personally in favor of less freedom by the State's to enact their own standards for commerce. While Europe is moving toward more common standards and rules, why on Earth would we want to create a nightmare for businesses and citizens by having up to 50 different sets of rules and standards.
To tell you the truth, since preemption is built into the US Constitution (See the Supremacy Clause), I have no doubt that preemption will continue. It is, in fact, useful to avoid the legal Babel that you describe. I am just happier now that Carl Rove and G W Bush are not involved, and even happier still that what they were doing with it is being undone.
Bygollymissmolly, that sounds exactly like something the BUSH REGIME already tried and failed. Remember Gonsales and his political firing of state Attorney Generals?
I think you might want to read it again. The firing of the States Attorneys was the Bush Administration attempting to politicize the judiciary, in other words, the government meddling with the states. It was an illegal attempt at affecting the election by prosecuting Acorn on trumped-up charges.
What has just been done is an UNDOING of meddling by the Bush administration.
I don't know what post you are replying to, but there is nothing about this that the Bush regime did. These are efforts to reduce some of their damage in allowing state and local entities to do as they want.
This is all well and good. But, President Obama still needs to get rid of all the Bush holdovers in our government. They are already working against him by leaking information to the press. He could start by firing all US attorneys who were appointed by Bush. Then reappoint the few who weren't right wing ideologues.
I agree. Start by removing everybody who was hired specifically because they graduated from Regent University.
But, but, but.......what kind of seccesionist argument will Perry and Sanford have now that Obama has shown that he is, in fact, protecting State's Rights instead of overriding them?
I sense a big twist coming.
They will do more whining then they will follow this up by going in front of their constituents to tell them the exact opposite of what Obama is doing. They will claim that he is over-exceeding his federal authority to insert language that would really limit the ability of the each state to decide what is best for himself. None of his constituents will ask him how exactly this is done nor the exact language that Obama is using because these people do not ask questions they simply follow the leader.
My apologies to any GOP'er who actually thinks for themselves and has utter disdain for the horrible Presidency of GW Bush. I understand that there are many independents out there who readily identify with a more libertarian approach. I don't disagree on some libertarian principles, in fact I think they would be helpful towards forming a more perfect union. I think there is room for progressives and libertarians to come to agreements on certain issues, specifically those that involve an individuals rights as well as those that keeps the federal government out of people's private affairs.
However the current GOP does not believe in actually implementing any of these libertarian principals, rather they believe in unregulated capitalism, privitizing Social Security, excanding Executive power, Infringing on the rights of constitutional safeguards for unreasonable searches and seizures, aggressive foreign diplomacy including waring with as many countries as we find ourselves in disagreements with, etc.
I think you've foreseen the GOP response perfectly. And I agree that there is room for progressives and libertarians to agree on many things. We need that balance.
Thank you. I find that progressives and libertarians share many of the same grievances and it would be more productive to have an honest conversation on where we share common ground instead of falling into the right vs. left charade that only maintains the status quo. When I complain about conservatives, it is mainly in regard to the faux capitalist Reaganites and the social conservatives like my neighbor who at various times has sincerely believed that Alice Cooper, Ozzy Osbourne, Marilyn Manson, JK Rowling or any yoga instructor was the devil.
I sense the famous Republican Spin coming!
Spin so strong it has its own (admittedly weak) gravitational field.
It takes a constitutional law professor to restore the Constitution. Obama knows what he's doing in this topic.
lightningbolt: amen
He needs to show me more. There is too much of the backing of the Bush issues like Gitmo and wiretapping of the American people.
I agree. On some other topics he is not following the Constitution. His idea of not looking back on the crimes of the previous administration and his unquestioning support of Wall St. and the bailout are major causes of concern. His support of wiretapping is also unconstitutional.
Most readers won't know this, but "preemptive preemption" has been used by the Right to quietly sabotage all kinds of good public policy at the state level for at least 30 years. The key is that all Congress needs to do is make a "finding" (not based on any sort of proof) that national uniformity is required to avoid a patchwork of potentially conflicting state regulations. The source of this authority is the Commerce Clause of the Constitution.
Sometimes preemption is appropriate -- for example, in regulating the width of trucks operating on roadways -- and sometimes it is plain stupid -- for example, relieving the airlines of complying with state laws prohibiting "bait and switch" advertising and consumer fraud. How often have you been "bumped" from a flight for which you held a confirmed reservation?
And it gets worse. If not for "preemptive preemption" of state regulation of banks and credit card issuers, we probably wouldn't be in the current recession/depression. Phil Gramm and his banker cronies (yes, with the support of Bill Clinton) swept away most state banking regulation when they repealed the Glass-Stegall Act in the late '90s. And in 1995, in a midnight hijacking of an airport bill without ONE WORD of debate, all state regulation of interstate trucking, other than insurance and vehicle inspections, was dismantled on the day before Congress adjourned.
If you care about "states' rights", don't look to the GOP.
Good info.
Good post. Thanks.
I don't like to quibble with what is otherwise an informative post, but Telemachus is confusing things a bit. The Commerce Clause grants the congress the exclusive right to regulate interstate commerce. So any federal law designed to regulate interstate commerce automatically overwrites state laws on the topic. This power of congress is so strong that any state law that impacts interstate commerce may be found to be unconstitutional even if congress has not legislated in the area. That's the Dormant Commerce Clause.
Preemption usually is found under the Supremacy Clause of the Constitution, not the Commerce Clause.
With that said, I agree with the rest of his post.
One more point - preemption has historically been something only congress can do. It has to pass legislation that says it intends to replace any state law on the subject (express preemption - there are also types of implied preemption, but that's not germane to this discussion).
But in the past about 19 years, federal regulatory agencies have been taking the position that even when congress has not explicitly preempted state laws, that the agencies can, on their own, when they issue regulations.
This is how state consumer protection laws in areas like banking, payday loans, debit card fees, etc., have been destroyed.
This preemption by regulatory agency rule is the sort of thing that the President is trying to halt. And I wish him well.
So - a state like CA makes it's own regulations on emissions - forcing the Automakers to make special cars just for CA sales? You actually think that burden is GOOD for the economy?
One reason fuel costs as much as it does is the stupid regulation of different fuel formulas for different parts of the country. What difference does that truly make? If I fill up my car in one state and cross that 'invisible line' into another where fuel formulas are different - what difference has it made?
If I drive my Midwest vehicle to California - and they have more stringent emissions regulations - but my car isn't a CA car - what difference has it made? None.
It makes a difference in the congested space of California. We have a lot of people living very close together, a lot of cars, and a topography that allows the pollution to just sit over our city (at least the LA basin) instead of dissipating back into the atmosphere. As they say, welcome to California, now take your gas-hog pollution-mobile home.
Your arguments make no sense. To begin with, Obama's reversal covers more than just emission regulations. But to go with your arguments - if you fill your car up in one state and cross the CA border to burn that fuel, it's generally a one time thing - you will probably not be driving back & forth across the border to get your gas on a regular basis. The majority of cars in the state will be filling up at CA stations and that will have the greatest effect on overall emissions.
If you drive your Midwest vehicle to CA and spend a week on vacation you will, of course, be one of thousands - or millions - who do so every year. But there are many more millions of cars licensed in CA that must abide by their emissions standards and that, again, will have the greatest effect overall. If you move to CA with your Midwest car, you will be required to have your car brought up to the State's emissions standards - a procedure than can be done on virtually every car. On those cars that can't be modified, there are exemptions. But, again, those cars will not be in the majority.
And yes, automakers do make special cars just for CA sales. You can even order a car for delivery in another state with CA emission standards on them.
There is nothing in the policy that requires the auto makers to create cars just for California. They can simply make a car that meets California standards for the entire country. If they had done that some time ago, the American auto makers would not be in the trouble they are in today.
Boy, talk about not seeing the larger picture. [Sigh]
Ok this is what is frustrating: "Conservatives" should be celebrating this move by Obama, as they are always touting Federalism and decreasing federal power over the states. Yet, we'll hear nothing. The type of intellectual dishonesty we see from "conservatives" is beyond belief.
"In an assault on federalism and our Constitution, the Bush administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens."
Money trumps everything in the GOP. If this does not favor the corporate interests (it does not) it will be met with outrage by the same people who have been pissing and moaning about State's Rights.
This won't get much press, but it is huge.
I can ALMOST forgive him for that indefinite-detention crap.
Almost.
You really do need to learn patience. Give our President time to figure out a legal and better way to handle these problems that Bush has created. This whole area is uncharted territory and there is no precedent for Obama to follow. He will right these wrongs as soon as he can figure out how to do it legally and in a way that protects this country.
I'll wait to see what he does about the detainees who fall into that fifth category, how narrow it is and what kind of due process is involved in making that designation before concluding that it's "crap."
Bravo!!! Yet another step in the right direction. Not that anyone will notice, given the MSM's preoccupation with Nancy Pelosi and other distractions created by craven members of Congress to the exclusion of issues that actually matter in the long run.
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