Caveat Preemptor

President Obama issued a “memorandum” for heads of departments and agencies.  (I guess this must be technically different from an “executive order” but I’m not sure it matters: an order from the Boss is an order from the Boss is an order from the Boss.)  The memo contains a reminder about the importance of federalism and some more specific instructions negating Bush Administration practices:

  1. No preemptive statements in regulation preambles unless the body contains a preemption rule.
  2. Preemption must be legally justified.
  3. Agencies should reexamine all preemption regs issued in the past 10 years.

These are a welcome change from the policies of the last Administration.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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