Wednesday, May 20, 2009


Memo on Overall Policy

In what I believe is the first general policy statement on federal agency preemption, the Obama administration directly rejects what had been the pattern of the past eight years. In particular, note is made of agency preambles which insert preemption language (or presumption) without basis in statutory law. The Troy-era FDA "preemption preamble" will be the most obvious example to people here.

The UPI story on the policy memo is here:

In some respects, the Troy-era position was already dissolved. In Wyeth v. Levine, even the dissent paid essentially no attention to it. The majority blew it aside as irrelevant.

Editorial opinion: ding, dong the witch is dead.


  1. Dear Mr President;

    What a wonderfully courageous and heartening stance you've bespoke.

    Is this glowing respect for the Xth Amendment going to be implemented the same way your 'Making Things Fair' raised cigarette taxes to place 4 Million more children under the SCHIP umbrella: increasing sales of Brain Damaging Neuro Toxic behavioral straight jacket drugs?

    Strip the 'Mental Health' assault on children out of SCHIP and even I will stand up and applaud.

  2. It seems that the pharmaceutical bulldozer has met its match. I hope that further inspection of the intentions and practices of the industry’s bad players will remain in the brightest of spotlights.

    It is amazing that they were able to get this far. Blatant disregard for the very foundations of our social and governmental standards were/are not beyond their contempt, to say nothing of their blind ambition for profit on the backs of the ones they are sword to serve.

    Regardless, they somehow manage to pervert these things right before our eyes. May we never fall asleep again.

  3. Justice, is she dead in Michigan? Or just all other states?

    If she's not dead, how can we kill her?

  4. Lizzie,

    If you are the Lizzie from Boston who carries an axe, we still need your services.

    But you are right, the Evil One still abides in Michigan. She goes by the name of State Senators Bishop, Kahn, Kuipers, Papagorge, and others. Her spirit has also entered the Chamber of Commerce (really easily, no foreplay required).

    But this mortals should not be blamed for being lured by the demonic. Soon there will be an exorcism here in Michigan as well. If not sooner, it is scheduled for election day, 2010.

  5. For folks who want to read the actual memo...

  6. It will be interesting to see how this stifles the "presumptuments" (presumptive arguments) that the industry's shills have been advertising lately.

    I think they walk a fine line. They want to make their arguments but they don’t like the glare of the spotlight. The president has turned the spotlight on and it’s ready to shine on anyone who tries to mislead people with unsupported arguments.

    These "presumptuments" can now be seen for what they truly are.

  7. There are two sets of arguments, I think. The arcane legal ones (regarding precedents for "implied preemption", et. al.) which, say, DDL mostly writes about....

    And the policy ones--the "presumptuments"--about the apocalyptic consequences that are inevitable if we do not end liability for drugs and devices.

    In court, defenders generally rely on the first, although not exclusively. (I was surprised how much of the policy stuff was cited in both decision and dissent in Levine, especially decision, although not by Justice Thomas, not surprisingly).

    In "white papers" (or whatever their color) written for "the public," we get the presumptuments.


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