Las Vegas Sun

January 29, 2023

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Sun editorial:

Victory for consumers

State laws offering more protections will be respected under White House directive

It is only common sense that many federal laws, those on civil rights among them, should be consistently and strictly enforced throughout the country. But many federal laws not covering constitutionally protected freedoms should stand only as a minimum standard. Laws in that category should rarely contain language barring states from setting and enforcing higher standards.

The administration of President George W. Bush, however, believed strongly in imposing its will on the states, especially in federal corporate and environmental regulation. This is because stronger regulations passed by states to protect consumers could increase a company’s cost of doing business.

Regulators under Bush often wrote “preemption” language into regulations, which meant the laws would be standard across the country because they preempted any relevant state law.

A famous example was California’s request to the Environmental Protection Agency in 2005 to adopt a law setting tougher automobile emissions standards than those set by federal law. The EPA denied the request. We wrote at the time that this was a misuse of federal preemption authority.

President Barack Obama interpreted the denial the way we did. Six days into his administration he directed the EPA to assess whether its past denial was appropriate. A decision is pending.

On Friday, Obama directed his administration to abandon the freewheeling preemption policies of the Bush administration. “Heads of departments and agencies should not include preemption provisions ... except where such provisions would be justified under legal principles,” he wrote in a memo to his staff.

He also ordered executives in federal departments and agencies to review federal regulations written over the past decade. If any preemption language is found to be unjustified, the executives are to “initiate appropriate action,” meaning that the language could be deleted by way of an amendment.

The Bush administration obviously took advantage of preemption authority to protect big businesses, including shielding them from product liability lawsuits filed under tougher state laws. Obama’s directive is a victory not only for states, but also for consumers.

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