Vladeck on Preemption

David C. Vladeck has written an issue paper entitled, "The Emerging Threat of Regulatory Preemption," distributed by the American Constitution Society.  The abstract provides:

In The Emerging Threat of Regulatory Preemption, Georgetown University Law Center Professor David C. Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. Professor Vladeck traces this “preemption by preamble” campaign in several key agencies, such as the Food and Drug Administration, and highlights the serious procedural and substantive issues involved. Procedurally, making preemption determinations in a regulation’s preamble (the introductory language that often precedes the actual regulation) is setting policy in a way that is “neither transparent nor democratic,” insulating it from the political process and formal notice-and-comment procedures. Substantively, permitting such preemption raises separation of powers concerns, as it could be viewed as an “effort by the Executive Branch to arrogate power that properly belongs to Congress.” Professor Vladeck argues that decisions “on whether to displace state law to achieve federal objectives are quintessentially legislative judgments that Article I, Section I of the Constitution entrusts to Congress.” Historically, state tort and damages law have served important and complementary roles to federal regulation, and tampering with that balance should not be undertaken lightly. Professor Vladeck concludes by cautioning that “[w]hile the public watches the Supreme Court wrestle with the preemption questions presented in Riegel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view,” a quiet erosion of tort law remedies and the health and safety benefits they entail. 

- SBS