Presidents, Preemption, and the States

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a lively debate as to whether the best institutional actor to foster federalism is the judiciary, Congress, or agencies. Yet despite the centrality of modern Presidents to preemption policy, the role of the President is all but ignored in preemption scholarship. Accordingly, this Article adds the President to the mix. In general, congressional lawmaking about preemption is preferable to presidential preemption because states have more opportunities to influence Congress. Nevertheless, there are many situations in which Congress cannot or will not consider the preemption implications of legislation. Accordingly, this Article explores ways in which the President can effectively ensure a vibrant role for the states in federalism regimes by using his Article II powers to push federal agencies to do a better job of considering state interests when they regulate