July 23, 2009

Inside Counsel quotes John Cooney on Obama's review of preemption clauses

2 min

The August 2009 issue of Inside Counsel featured an article on President Obama's recent preemption memo and included quotes from John Cooney, a partner in Venable's Banking and Financial Services Practice Group.

According to the article, a May 20, 2009 memo from President Obama introduced the next chapter in the ongoing debate over federal preemption by issuing a memorandum clarifying his administration's position. Federal agencies can pre-empt state laws, he wrote - but only when there's a sufficient legal basis for such displacement.

The president ordered federal agencies to review all regulations created during the past 10 years to determine whether the pre-emption clauses that appear in some preambles are justified. Where an agency deems a pre-emption clause inappropriate, it will amend the rule to remove the passage, potentially impacting product liability litigation for everything from mattress flammability to the safety of food additives.

The change in policy feels very familiar to Cooney, a Venable partner who served as a deputy general counsel in the Office of Management and Budget during the Reagan administration. In 1987, Cooney helped President Reagan process an executive order directing federal agencies to examine their statutory authority and refrain from improperly supplanting state control.

"President Reagan was simply reminding the agencies to carry out their duty, but to do it in a way that expressed his concern with the appropriate role of the states in the federal system," Cooney says.