Federal Preemption Must Be Explicit

As the Supreme Court marches to the Right, corporate interests continue to thrive at the expense of state regulatory powers.  "This has been a very successful year for the business community," said Miguel Estrada, a Washington appellate lawyer who represents many key corporate interests before courts in Washington, D.C."  This session at the U.S. Supreme Court, as this Dispatch will highlight, had an almost uniform tilt towards business versus state regulatory authority.  In other areas like election law, the tilt was against poor voters who faced restrictions on their right to vote, though the term was a more mixed bag on criminal justice and other issues before the Court.

In one more example of lax federal agencies being empowered to block tougher state protection of consumers, the Supreme Court ruled yesterday that states are barred from protecting consumers from faulty medical devices, such as breast implants, if the Federal Food and Drug Administration (FDA) has already approved those devices.

Suddenly, the news is filled with stories about industry lobbyists marching up to Capitol Hill in Washington, D.C., asking to have their industries regulated:

At their Spring national gathering, leaders of the National Conference of State Legislatures (NCSL) condemned increasing federal regulatory and legal restrictions on state authority in areas ranging from consumer protection to criminal law:

"Federal regulatory preemption is nothing more than a backdoor, underhanded means by which unelected federal bureaucrats impose their will on the states," [said] New York state Sen.