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Part Three

Mind Control Without Drugs: How Complete Corporate Immunity/Preemption Snuffs Out State Laws

Quick Disclosure: The author is a plaintiff’s practicing injury lawyer, and a registered independent voter, who prior to law school was employed as a staff assistant to a Republican U.S. Congressman for two years

First, even a consumer who is not a constitutional scholar might ask this: if for over a century, state and federal juries decided a fair verdict for any consumer in a civil case, including an injury case, how could states pass “tort reform” laws that say that an injured person, for example, could only recover say $200,000 for losing a leg or arm, or that same value for death of family member? Are arbitrary caps on recoveries a violation of the civil trial by jury mandate of the Seventh Amendment? At common law there were no such caps or ceilings on verdicts. Well, state and federal appeals have been all over the board on this constitutional issue-some judges have ruled these caps violate the 7th amendment, other judges say they don’t. Judges that believe these “caps” are not unconstitutional dance around the 7th amendment but how can one conclude that the injured person is receiving trial by jury as at common law if the jury is basically given a new limited list of what damages it can and cannot grant to the injured person? “Tort reform” is basically a list of limitations handed to civil juries-and in my view these caps and ceilings-all of them-violate the clear mandate of the 7Th amendment.

Beyond Trial by Jury to Complete Immunity Preemption for Special Interests/Large Corporations

Besides whittling away at trial by jury, the Bush Administration had goals that went beyond ceilings and caps under the guise of “tort reform”-the new idea was to completely eliminate some types of law suits and give immunity to certain companies involved in various products, medical devices or activities. This was a new idea–to snuff out state consumer protection laws—just wipe out the right to sue entirely! One big problem with this “scheme” is that the tort system is designed to monetarily penalize unsafe or careless defendants or companies-this is a check and balance of the US civil justice system. Safe companies are not penalized.

Federal law is the supreme law of the land under the United States Constitution if a controversy exists between federal and state law. The tension between federal and state law was one of the key disputes between the framers of the Constitution. The Constitution sets forth that if a federal law is enacted, it is the supreme law of the land. If a federal law is passed by Congress, and signed by the President, the federal law can state that it cancels out, or preempts any contrary state laws-whether on the state books a century or ten years.

One of the new twists (tricks?) of the Bush Administration was to issue something published with a federal regulation—something called a “policy statement” or “preamble” published by the agency, which can accompany any regulation. And the new twist was that the Bush Administration’s Office of Management and Budget began systematically ordering various federal agencies to insert language snuffing out state consumer protection laws—essentially inserting complete immunity protection language for insurers and corporations. Guess what? A policy statement of the agency is not subject to public comment and is not even a federal rule. However, depending upon what judge is reviewing the agency policy statement, a policy statement alone can potentially snuff out state laws of the 50 states of the union!

The planting of the snuff out language is what is known as stealth preemption-that is wiping out state laws without an actual congressional law or an act passed and signed by a president. What a devious end-run around the U.S. Constitution!

The American Association of Justice fought under the freedom of information act to force the Bush administration to produce contacts between the office of management and budget, closely aligned with the White House, and various federal agencies. (See the amazing full 37 page report). The freedom of information act requests were issued to determine whether OMB had actually influenced the policy statements that were issued by various Bush administration federal agencies, such as the food and drug administration, national Highway safety and transportation administration, and other key federal agencies. The results of these requests turned up emails and documents proving exactly what was suspected: the White House and the Office of Management and Budget had essentially directed various federal agencies to issue policy statement/preambles to federal rulemaking indicating that the new federal rules/regulations were intended to wipe out any state safety laws, essentially cramming down the new federal rule/regulation on all 50 states with no Congressional mandate or law. This systematic policy statement planning was a masterminded plan to wipe out over a century of state consumer safety laws without the enactment of any new federal legislation. And it has been working for nearly 8 years now, despite outcry from consumer safety advocates every time an agency slips some kind of complete immunity for whatever industry or insurer will benefit.

My colleague, Wayne Parsons, another Injuryboard blogger summed it up:

Seven federal agencies have issued over 60 preemption regulations, to the great benefit of the powerful CEO’s and CFO’s and their corporate empires. The Office of Management and Budget (OMB) had direct involvement in the placement of the “complete immunity” preemption language. At first OMB claimed there was no truth to this claim. When the American Association of Justice went directly to the agencies in question they found emails showing that that OMB initiated preemption with the agencies, and that sometimes OMB provided the preemption language that this conservative partnership of corporate executives and the Bush administration wanted.

My Take: it is amazing that the states and their national representative organizations have barely whimpered while the Bush Administration has systematically been trampling on state rights governing the civil justice laws inside their own borders. Only recently have state organizations been mobilizing to control or roll back complete immunity preemption and the obliteration of hundreds of state consumer protection laws. It will take concerted efforts and several years for Congress to reverse the damage to state safety laws wreaked by the Bush administration stealth complete immunity preemption program. Mind Control without drugs.

Rick Shapiro is a personal injury lawyer based in Va. Beach practicing with Shapiro, Cooper, Lewis & Appleton law firm.

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