Today a conference committee of U.S. House and Senate members is meeting again to try to complete a single bill to markedly change regulation of financial institutions by the federal government in response to the Wall Street crash of 2008-9. This area of law has been only the latest in which those who disregard or minimize the 7th Amendment (and its “Constitutional cousin,” the 10th Amendment) seek to preempt state statutory and common law, in this case through federal preemption of state banking and consumer protection laws. State officials, especially Attorneys General, and members of Congress assert that federal preemption hobbles the states’ ability to protect consumers from the types of abusive lending practices which contributed to the financial meltdown. As one commentator noted, “In the run-up to the mortgage meltdown, federal bank regulators fought hard to pre-empt any state efforts to crack down on shady bank practices. A number of states, like North Carolina and New York, were trying to crack down on abusive mortgage practices by subprime lenders. But many of the lenders were subsidiaries of national banks, and the Office of the Comptroller of the Currency declared that states had no right to touch them whatsoever. The feds did absolutely nothing to stop the explosion of no-doc loans, option ARMs, deceptive teaser rates and hidden ‘yield-spread premiums.'”
Federal preemption abrogates 7th Amendment rights by immunizing the affected industry from civil suits, with no accountability for negligence; it leaves injured consumers with no means of seeking recovery for injuries caused by the product or service. Federal bureaucrats love expanding their power and ensuring their permanency by preempting state law, and in recent years they’ve certainly exercised that power. Bureaucrats in the Food & Drug Administration (FDA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), Department of Homeland Security, Pipeline and Hazardous Materials Safety Administration, Transportation Safety Administration and Federal Railroad Administration have all joined in writing federal preemption into regulations.
The courts have joined in too, with the Supreme Court deciding in Riegel v. Medtronic that FDA approval of certain medical devices automatically preempted state common law, resulting in the dismissal of hundreds of lawsuits. The February 2008 decision ignored Congressional intent and disregarded 30 years of experience under the 1976 Medical Device Amendments (MDA), during which FDA regulation and state tort law worked together to protect consumers from dangerous devices. The Riegel decision gives total immunity to device manufacturers who fail to adequately warn consumers about device risks. In Riegel, the device that failed was a Medtronic balloon catheter used in heart surgery. Riegel needed additional surgery but eventually died. Now, thanks to the decision, Riegel’s heirs are left holding the bag for the manufacturer’s negligence. The MDA authorized the FDA to preempt the numerous state requirements only in statutory law. But the court decision turned the simple preemption provisions of the MDA into a vehicle giving total immunity from any accountability, with no checks and balances.
There’s nothing “conservative” about giving a federal bureaucrat life-or-death power over the average American sitting hundreds or thousands of miles away. Federal preemption is a blank check for Washington bureaucrats to expand their sphere of influence and inject themselves into our lives. Real advocates for the 7th and 10th Amendments should recognize that trading they’re trading freedom for a phony concept of “efficiency,” something which the Founding Fathers rejected.