June 14, 2006
Preemption by Preamble - New Paper
In the preamble to its most recent (January 2006) prescription drug labeling rule, the FDA made clear its belief that "FDA approval of labeling under the act ... preempts conflicting or contrary State law". The latest rule (effective July 2007) handed down by the Consumer Product Safety Commission (CPSC) includes a sweeping preamble statement that the new federal standard preempts "inconsistent state standards and requirements, whether in the form of positive enactments or court created requirements". And, if NHTSA has its way, its new safety standard for roofs on sport-utility vehicles will include language immunizing auto manufacturers from state tort lawsuits over defective roofs if their autos meet federal safety standards. Dubbed "silent tort reform", these preemption preambles may be only the beginning, the tip of the iceberg, a harbinger of a future where federal agency regulations come armed with directives to displace competing or conflicting state regulations or common law as a matter of course.
With the issuance of these recent controversial preambles, federal agencies have thrust themselves into the preemption spotlight. In the "tale of three agencies" that follows, I explore the recent agency action against the backdrop of the dynamics and organization of the various regulatory regimes in question, comparing and contrasting the CPSC, the FDA, and NHTSA. Critical to my analysis is the interplay between private rights of action and federal regulatory schemes. Courts appear to grant agencies fairly expansive discretion to interpret (or declare) the preemptive scope of the regulations they promulgate, but when it comes to inferring private rights of action under those same regulations, their hands are tied by judicial tether. As Justice Scalia colorfully responded in the latter context: "Agencies may play the sorcerer's apprentice but not the sorcerer himself". Why can an agency play the role of the sorcerer in the context of preemption, but must remain a lowly apprentice with respect to implied rights of action? This ostensible asymmetry reveals that any threat to the "rule of law" presented by the federal agencies' preemption preambles rises or falls depending upon either the continuing existence of private rights of action (either express or implied) at the federal or state level, or, alternatively, the provision of a remedial framework as part of the federal comprehensive scheme. In this way, the necessity of private rights of action varies inversely with the comprehensiveness of the federal regulatory scheme.
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