Federal Government should use pre-emption to strengthen citizens' protections, editorial says

May 25 2008

"Since the conservative ascendancy in Washington," many of those who once thought federal laws "trampl[ed]" on states' rights have now "begun burying" states' rights -- "not to protect citizens' rights, but to take them away" by using the pre-emption rule, Adam Cohen writes in New York Times opinion piece.

The rule is a "little understood doctrine" that allows the "federal government to wipe away state laws," Cohen says. While the Constitution says that federal law can "trump" state legislation, the pre-emption rule "should be a floor, not a ceiling," and it "should set a minimum level of rights, not stop states from doing more to protect their citizens."

The federal government has used pre-emption to enact civil rights acts, which "swept away discrimination at the state level," and workplace safety laws, Cohen says. However, the Bush administration and members of Congress also have used pre-emption to enact "weak environmental, health and consumer regulations," he adds.

Cohen writes that the "2003 Medicare law was a disturbing case in point" because it "blocked states from regulating most abuse" by private Medicare Advantage plans, "an area the administration is not properly policing." Officials from the National Association of Insurance Commissioners have said the law has usurped its members' authority to protect their consumers.

In addition, Cohen notes that an Associated Press report found that the Bush administration has "quietly rewritten" more than 50 proposed or adopted federal regulations to make it harder for consumers to file lawsuits against manufacturers of unsafe food, drugs or other products. Cohen writes that most of the federal government's efforts at pre-emption have taken place out of the public's eye.

Cohen concludes, "As Democrats and Republicans contemplate what kind of 'change' voters are looking for now, they can start with the idea that both the federal and state government need to do a better job of protecting their citizens" (Cohen, New York Times, 5/23).