With ever-increasing federal intervention in state affairs, delineations between Lyndon Baines Johnson’s “Creative Federalism” and Bill Clinton’s “New Age Federalism” have lost meaning, denoting pale differences between degrees of federal hegemony. The federal bureaucratic expansion has made some conservatives nervous that the welfare state will irreversibly centralize government into small department kingdoms, headed by unelected bureaucratic kingpins. “If you strip all the legalese here that shrouds the debate,” asserted Georgetown Law Professor David Vladeck at a September 12 Senate Judiciary hearing, “what is going on here is that the administration is pushing silently and behind closed regulatory agency doors a public policy campaign that I don’t think they could get through Congress.” In other words, Vladeck believes that administration officials are circumventing the legislative process in an attempt to institute special interest policies. Vladeck was responding to several recent court battles, in which the defendant corporations claimed consumer liability immunity using federal agency regulations.

Proponents of allowing the use of the 2006 Food and Drug Administration (FDA) preamble to preempt state tort laws argue that preemption largely benefits American society, enhancing economic and legal cohesion throughout the states. Attorney Alan Untereiner, representing the U.S. Chamber of Commerce, testified at the hearing that “Congress should not allow controversies over a limited subset of preemption cases or administrative decisions to drive far-reaching changes to this important area of law,” because a Congressional overreaction to a few, isolated cases could damage the administration’s ability to enforce legislation. “So long as Congress delegates the power to regulate generally to the agencies in its organic statute, then that implication of power… also implies the method with which to regulate, including to preempt where necessary by express provision within the regulation,” asserted Georgetown Law Professor Viet Dinh (emphasis added). Therefore, Congressional action should center around containing these abuses, rather than codifying broad-sweeping institutional reforms.

Some might ask how America has reached the point where bureaucratic officials combine the powers of implementation (executive), rule-making (pseudo-legislative), and trials (pseudo-judicial) within a single branch. Few realize that the creation of the bureaucracy was an implied presidential power contained in Article 2 of the U.S. Constitution, which asserts that the president has the duty to “take care that the laws be faithfully executed.” Congress retains the power to dissolve, regulate, or de-fund departments, but such actions are rare. As a whole, Viet Dinh’s testimony seemed to imply that the process would work itself out naturally, as Congress dealt with discrete bureaucratic abuses of power. But Senator Patrick Leahy (D-Vermont), Judiciary Committee Chairman, treated such optimism with skepticism. “. . .It’s not quite as simple. I agree with you on the basic theory. The reality is a lot more difficult than the theory,” argued Senator Leahy. He cited many political barriers to Congressional action, including the need for a supermajority to overcome presidential veto, political fragmentation, and legislative deal-making. In addition, Congress lacks the power and resources to patrol every bureaucratic ruling during the year. It must instead rely on a “fire alarm” policy, in which egregious abuses by bureaucratic officials are corrected when they receive public notice, such as in the case of the Walter Reed Hospital scandal. In addition, the federal government has repeatedly demonstrated that it has difficulties with maintenance?why would this issue be any different?

Opponents of the FDA unilateral rulemaking argue that this issue extends much farther than traditional interpretations of the federal supremacy clause, and that the FDA and other agencies have exceeded their congressional authority. The National Conference of State Legislatures is “not anti-preemption. . .But what we are sir, is we are pro-process. We want to be included in the dialogue,” asserted NCSL President Donna Stone (DE R-32). The actions taken by the FDA behind closed doors among a group of non-elected bureaucrats, she argues, undermine the democratic system by placing preemptive law in the hands of unaccountable civil servants with a special interest constituency. She considers transparency central to good government. “We believe that an open process benefits everyone, it allows a better way to share information, and?I think?ultimately it results in much better policymaking,” argued Stone.

However, in the short run, the FDA 2006 preamble ruling has evoked a return to pre-1990′s tort policy, before frivolous lawsuits involving coffee burns or ladder injuries overtook the courts. Prior to the 1990′s tobacco lawsuits, the courts had been traditionally reluctant to award damages based on the side effects of consumer products which were not the result of manufacturing defects. The successful tobacco-related plaintiffs of the 1990′s were actually won by state Attorney Generals, not average citizens, who were suing to offset medical expenses that tobacco use had shifted onto the welfare state. The courts’ reliance on the FDA preamble, regardless of its justification, may serve as a means to reestablish limitations on consumer lawsuits.

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