This is adapted from a piece at Progressive States today--

In one more example of lax federal agencies being empowered to block tougher state protection of consumers, the Supreme Court ruled yesterday that states are barred from protecting consumers from faulty medical devices, such as breast implants, if the Federal Food and Drug Administration (FDA) has already approved those devices.

These means that a federal agency like the FDA, politicized by a right-wing President and dominated by industry-funded advisors, can unilaterally override laws in all fifty states that hold companies liable for harm to consumers.  This, despite the fact that, as the New York Times described:

The Institute of Medicine, the Government Accountability Office and the FDA's own science board have all issued reports concluding that poor management and scientific inadequacies have made the agency incapable of protecting the country against unsafe drugs, medical devices and food.

Subverting Pro-Consumer Laws: Because it is impossible for any agency to find all problems with products during the approval process, states have long held medical device makers liable for harm to consumers. However, in 2004, the Bush Administration retroactively reinterpreted the 1976 Medical Device Amendments law to preempt state damages against devices approved by the FDA. But as the sole Senate sponsor of that 1976 law, Sen. Edward Kennedy condemned that interpretation of a law meant to protect the public, not protect industry:

In enacting legislation on medical devices, Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices. Congress obviously needs to correct the court's decision. Otherwise, FDA approval will become a green light for shoddy practices by manufacturers.

A Dangerous Trend: We are seeing a cascade of federal agency decisions, backed by federal courts, that are gutting state law protections for consumers and workers. As PSN described last year, the sub-prime mortgage meltdown might have been averted if courts had not allowed a federal banking agency to preempt state laws that sought to rein in predatory lending practices in the home mortgage industry. This is part of a dangerous trend of industry using federal preemption to limit state government regulation of corporate abuses. It also illustrates the hypocrisy of a conservative ideology that claims to represent limits on federal power, but readily abuses that federal power to sacrifice the rights of consumers and workers for the sake of monied interests.

We are quietly seeing the court gutting of massive areas of consumer and worker protection-- and the pathetic part is that "liberal" Supreme Court Justices are signing on to many of these decisions. The rightwing Justices happily are mostly ignoring all their own propagandistic blather about "federalism", since they are choosing results-oriented attacks on progressive state policy over any principle. But liberals have apparently so bought the Kool-Aid of federal importance that they are signing on to preemption of state laws, even when the sponsors of those federal laws like Sen. Kennedy explicitly say that this was never their intention.

One key policy program if we have a new President should be a real progressive federalism agenda that doesn't see all solutions coming from D.C. but promotes policies that empower progressive state legislators and governors, rather than tying their hands through these kinds of decisions. If courts are going to get it wrong, we need Congress to start rewriting laws explicitly granting states power to enforce consumer rights where needed.  One good example of this is the toxic toy debate, where states are acting to ban lead and other toxins from childrens toys, while a number of Congressional bills on the issue explicitly protect state power in this area or give state attorneys general the power to enforce federal toxic toys law, a way to assure that enforcement of federal child safety laws would not be gutted when corporations buy off the White House.

Putting all of our eggs in the federal backet is suicidal, since what we have seen under Bush, is that preemption plus executive discretion equals complete abandonment of consumer, environemental and workers rights.