One of the first official acts of the Obama administration was to halt the effect of any “last minute” Bush administration “corporate protection” regulations that would wipe out consumer rights to pursue state court lawsuits. The Bush Administration has famously wiped out and "preempted" each of the 50 states civil justice remedies in a wide array of fields, including select regulations involving medications, prescriptions, railroad matters, food and drug issues, and the list goes on. This is also known as complete immunity preemption.
Under this executive mandate, the Obama Administration will have the option not to finalize any proposed rule (or final rule which has not yet become effective) or to ensure that any final version of a pending federal regulation would not preempt (trump or wipe out) state tort law remedies.
For example, the American Association For Justice noted how important this action was to consumers in this news release:
Yesterday’s issue of a memo direct federal departments and agencies to stay regulations that aren’t yet final until a review can be conducted by the new administration froze the rule that could prevent Kimberly Gueldenzoph from receiving justice. One of the pending rules is a Food and Drug Administration (FDA) labeling requirement for prescription drugs for pregnancy and lactation. Kimberly’s daughter Kenndyl died from complications arising from a congenital heart defect Kimberly believes was caused from her taking Paxil during part of her pregnancy. Neither Kimberly nor her doctor knew that taking Paxil during pregnancy is associated with an increased risk of birth defects, but the manufacturer of Paxil, GlaxoSmithKline (“GSK”) did. The FDA rule could prevent people harmed by prescription drugs while pregnant or breastfeeding from seeking justice in the courts. Kenndyl was just two weeks old.
In fact, over 23 pending rules including several dealing with auto safety and products requiring FDA approval were stayed and have no effect on state tort law.
Lets be clear: the new Obama administration will make a difference. Its reassuring to know that federal regulations will be enacted the old fashioned way-in accord with federal law. Backdoor regulatory “preambles” will not be used to foist federal mandates over states—which effectively snuffed out all state tort remedies without public hearings and comments. President Obama’s 12 years teaching constitutional law at the University of Chicago Law School may spell the return of government adhering to the U.S. constitution, rather than looking to avoid it.
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