Preemption: The Theft Of Your Civil Liberties

Help for workers and consumers is on the way. "Complete Immunity" is out; fairness is in.

Pres. Obama is poised to reverse the Bush administration's “COMPLETE IMMUNITY DOCTRINE,” a radically conservative doctrine that uses PREEMPTION to give complete immunity to negligent corporations. Preemption deprives workers and consumers of the right to hold wrongdoers accountable through the civil justice system. The Bush administration has used preemption to deprive Americans of several fundamental, traditionally American civil liberties, most notably the right to trial by jury and the right of access to the courts.

To reverse the injustice, the Obama administration needs to immediately implement the following:

(1) Issue an immediate stay order of all "non-final or recently completed rules" that PREEMPT state law protecting workers and consumers. At this time, there are 23 preemptive regulations, including several dealing with auto safety and products requiring FDA approval.

(2) Revise Executive Order 13132 on Federalism, instructing agencies and the courts regarding the Obama administration’s policy of "NO PREEMPTION TO DENY CIVIL LIBERTIES." The Obama administration should make it clear: PREEMPTION is THEFT of CIVIL LIBERTIES!

(3) Establish a White House office to coordinate and implement a "NO PREEMPTION TO DENY CIVIL LIBERTIES" policy, carefully overseeing the preemption language included in all federal rules.

(4) Utilize the rule making process to reinstate Congressional intent regarding the ability of injured consumers to hold medical device manufacturers accountable for injuries to consumers. In Riegel v. Medtronic, Sup. Ct. Justice Antonin Scalia "misconstrued the Medical Device Amendments of 1976," and gave all irresponsible medical device manufacturers "complete immunity" from claims regarding their Class III pre-market approved devices. The FDA needs to withdraw its August 2008 final rule regarding labeling. The rule discourages medical device manufactures and pharmaceutical companies from updating warning labels with hazard information without prior FDA approval, a blatant attempt to influence the Supreme Court’s decision in Wyeth v. Levine (argued November 3, 2008).

(5) Issue new rule making guidelines for rules containing PREEMPTION language. Agencies like the FDA and NHTSA have become SUPER-LEGISLATORS, implementing agency policies contrary to the Constitution’s separation of powers and explicit Congressional intent. Here are some examples:

70 Fed. Reg. 36094 (2005) and 73 Fed. Reg. 58887 (2008) give automobile manufacturers BLANKET IMMUNITY from lawsuits, literally a "get-out-of-jail-free" card, for making vehicles with an insufficient number of seat belts. Yet, many states have laws that make illegal for driver and passengers not to "buckle-up."

71 Fed. Reg. 76852 (2006) and 73 Fed. Reg. 72130 (2008) "establishes minimum security requirements for railroads to transport hazardous materials." This rule gives railroads COMPLETE IMMUNITY if they injure local residents, directly contradicting recent legislation.

Remember, PREEMPTION is THEFT of YOUR CIVIL LIBERTIES!

Bush Administration Gives "Get Out Of Jail Free" Pass For Corporate Greed And Irresponsibility.

Every American worker and consumer has a constitutional right to American courts. Civil justice is the only mechanism by which American workers and consumers can keep corporate greed and irresponsibility under control. This right is as sacred as the right of habeas corpus.

Beginning with the Reagan administration in the 1980s, the executive department has attempted to develop a "statutory method" that prevents American workers and consumers from having their day in court. The preventive feature, called preemption, consists of statutory language that makes it illegal for a state or federal court to hear the claims of workers and consumers regardless of the merits. It's hard to imagine any democratic system that takes away a man's right to complain, but "preemption" does just that.

During the remaining 60 days of Pres. Bush's term, the Bush administration is trying to "push" through 21 regulations that contain preemption language, virtually a "get out of jail free" pass for corporate greed and irresponsibility. The regulations constitute a major assault on the middle-class, working families, and consumers, including among other things limitations on lawsuits involving safety standards for over-the-counter drugs, sunscreen products, automobile roof crush safety standards and crashworthiness of railroad cars that transport hazardous materials.

View "Get out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability." View a list of regulations . American Association for Justice, 11/20/2008