Created: 20 May 2009
Today, President Obama issued a Directive to the Heads of all Executive Branch Departments and Agencies stating it is the policy of his Administration that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Preemption of state common law will no longer be presumed or asserted by regulatory agencies absent “explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles.”In order to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis, the President’s directive provides that:”1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption…3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.”