A view from the states on stealth tort 'reform': the Bush administration is using the federal rulemaking process as its latest weapon against state tort remedies. A Texas lawmaker tells how this tactic undermines states' authority and frustrates their ability to protect their citizens.

The Bush administration's recent attempts to preempt state law by inserting pro-preemption language in federal agency rules has been characterized as back-door tort "reform." The effort has surfaced in places as diverse as the FDA's prescription drug labeling rule, the Consumer Product Safety Commission's mattress flammability standard, the National Highway Traffic Safety Administration's roof crush standard, and the Department of Transportation's regulations governing fuel economy.

State governments have been watching these developments closely and with growing alarm, noting that such efforts would immunize industries from liability for dangerous conduct and leave consumers without remedies provided by state law. Lawmakers of all political persuasions are also concerned about increasing federal encroachment on state authority.

Texas Sen. LETICIA VAN DE PUTTE (D), who represents a district that includes a large part of San Antonio, has worked as a pharmacist for more than 26 years and served five terms as a state representative. Now serving her fourth term as state senator, she is president of the National Conference of State Legislatures (NCSL), which advocates for states' rights before Congress and federal agencies. Van de Putte is the first Texan and the first Hispanic woman to lead the organization. She has spoken out against federal "one-size-fits-all approaches" that interfere with state policy.

Van de Putte spoke with TRIAL Associate Editor ALLISON TOSSES BURTKA about how states and NCSL are reacting to efforts to push stealth tort "reform."

TRIAL: What does NCSL see as the biggest problem with this latest tort "reform" tactic?

Van de Putte: I think what alarms state lawmakers is that it's a power grab by the Bush administration to preempt states from protecting their own constituents.

Preemption is not new--Congress has always had the power to preempt state laws--but this tactic is. What's alarming is the rate at which it's occurring--these initiatives are appearing in so many areas--and that preemption is being asserted without congressional action.

Sometimes a rule or regulation is fine, but at the last minute, agency officials insert language in a preamble--like the one in the FDA's new prescription drug labeling rule--that says, "This trumps all state law." This subverts congressional power, because Congress never agreed that state law would be preempted, and only Congress has the power to do that.

TRIAL: Do you think the shift in Congress last November will result in diminished efforts to preempt state law?

Van de Putte: I think it will, at least at the congressional level. The problem is that the most egregious attempts to preempt state law have occurred at the agency level.

The federal government should use preemption in very rare and extraordinary circumstances--things like violations of civil rights. But these stealth tort "reform" measures prevent state legislators and courts from protecting their citizens.

TRIAL: How might the new Congress be different?

Van de Putte: Before, our cries fell on deaf ears. Although some of the most conservative Republicans were appalled at what was going on in the agencies, they felt, at times, thwarted by party leaders from speaking up or taking action. It wasn't just Republican versus Democrat--a lot of Republicans were concerned about this threat to our federalist system.

Just because there's been a change in who controls Congress doesn't necessarily mean we can put a halt to these agency actions.

TRIAL: What do you say to arguments by regulated industries that following a "crazy quilt" of different state regulations is impractical for companies that manufacture products or provide services in many states?

Van de Putte: That's not the federal government's role. Nowhere in the Constitution did our founding fathers say that the federal government's role was to make it easier for corporations to avoid liability for wrongdoing. And it is the states' duty and responsibility to enact laws to protect their citizens.

Most federal laws and regulations provide the bare minimum for consumer protection. States are used to this template--the federal standard being the floor, not the ceiling--in labor law, environmental law, highway safety standards, and other areas. States were always welcome to go beyond the federal standards to protect their citizens as they saw fit. The states are used to the federal government saying, "This is what you need to do to meet a threshold," but never "You can't go beyond this."

What we see now is the federal government attempting to establish a ceiling, which is a totally different concept.

TRIAL: What do you think has gone wrong in the relationship between federal agencies and the industries they are charged with regulating?

Van de Putte: I think the agencies have lost their sense of purpose. The purpose of any agency is to protect the United States and its citizens, not to protect corporate interests.

TRIAL: How is federal preemption frustrating state authority ?

Van de Putte: One example is the federal Real ID Act. It's not an agency action, but it illustrates how Congress's preemptive powers can be corrupted to serve the desires of individuals or groups in the federal government.

The act creates national standards for issuing state drivers' licenses and identification cards. Among the costly requirements necessary for implementation is that states will likely have to reissue drivers' licenses and identification cards to all 245 million current holders within five years, at a cost to states of at least $11 billion over the first five years.

Since September 11, 2001, nearly every state in the Union had taken steps to secure its state-issued drivers' licenses and identification cards and was in the process of working with the federal government, under the 9/11 bill, to create a set of minimum standards for drivers' licenses. Real ID was an amendment that was snuck into an appropriations bill that wiped out everything the states had accomplished.

Under Real ID, states must now verify the identity of each applicant for a driver's license according to specifics outlined in the act. Over the course of the next five years, everyone who has a driver's license must appear at their department of motor vehicles to prove they are who they say they are. And it's not just showing up with a birth certificate. Women who changed their names when they were married must bring their marriage certificate, for example. Gone are the days of convenient mail-in driver's license renewals and same-day service. Real ID will be a huge inconvenience for a whole lot of people.

TRIAL: So what approach should the federal government take to pursue this kind of initiative?

Van de Putte: If the administration and Congress want to create a nationalized ID system, fine--then have hearings, pass the law, and fund it. Similarly, if our congressional representatives feel they have to protect the safety of citizens by creating new prescription drug labeling standards, then have a hearing and pass a law. That's not what happened with the Real ID Act or with the new drug labeling rule.

Preemption is meant to be used in rare circumstances--to ensure that legal rights are protected. In these cases, preemption is being used to take away rights, which is a perversion of its purpose.

TRIAL: What perspective does your experience as both a pharmacist and a legislator give you on the FDA's prescription drug labeling rule ?

Van de Putte: I don't know what I'd tell the family of a patient who put her trust--and whose physicians put their trust--in a drug that later caused her death. I wouldn't want to have to say, "Well, it did cause her death, but the manufacturer labeled it correctly."

NCSL will closely watch lawsuits that test the prescription drug labeling rule.

TRIAL: What other implications does preemption have for the health care system?

Van de Putte: This is a huge one. If these prescription labeling standards had been set before, some of the class actions and other lawsuits we've seen over pharmaceutical agents that caused people's deaths would have been preempted. Because they weren't preempted, they succeeded in prompting recalls, exposing flaws in the drug approval process, and compensating those injured by the drugs.

Also, the FDA could take the same rationale it used in the prescription labeling rule and expand it to other contexts, like food and medical devices. It would be like saying--after people in several states became ill when they ate contaminated lettuce at Taco Bell restaurants--"OK, Taco Bell, you labeled all your food correctly, and it's too bad that those people got sick and might have died, but the pricing label was fine, so that absolves you of all responsibility."

TRIAL: How is federal preemption likely to affect the civil justice system?

Van de Putte: It hampers state lawmakers' ability to allow their citizens to seek redress for injury. If companies know that there's no accountability, then I'm worried about the continuing safety of a lot of products and services. We would hope that companies would try to be as responsible as possible, but we've seen countless cases where corporations changed their practices and their products to make them safer only after plaintiffs successfully recovered damages in civil lawsuits.

TRIAL: Do you think federal agencies that have adopted rules and regulations preempting state law are likely to take this approach more often?

Van de Putte: I don't know, but we've seen an escalation in the use of this tactic. It may be evidence that the Bush administration is desperate to get its agenda through in the time it has remaining and is sensing that the political pendulum is swinging back to a more centrist, proconsumer philosophy.

The administration had better wake up to the election results of this past November and understand that Americans have said that they want a government that's responsible and accountable, whether for the handling of the war in Iraq or the implementation of any other policy.

TRIAL: How can the agencies be stopped from pushing the administration's preemption agenda with the rulemaking process?

Van de Putte: States can work to stop them when we know a bill is going through the normal legislative process, by getting involved in hearings and talking with agency people.

But when all that's left is to react to language that is slipped into some agency's preamble to a rule, then public policy is set at the agency level and doesn't have full disclosure or public input. And if that's the case, why have Congress meet at all? Just let the agencies do what they feel is best.

This tactic really diminishes the role of public discourse. It is extremely harmful to the balance of power, not just between the federal government and the states, but also between the executive branch and the legislative branch and it leaves very little to the judicial branch to interpret. This totally upsets our basic system of checks and balances, which has worked so well for over 200 years.

TRIAL: What would you say trial lawyers can do to help fight preemption?

Van de Putte: You can work through AAJ and fight preemption through grassroots lobbying. Make your voice heard on how real people are affected. It is crucial that we all take a stand on preemption now.