President Obama issued a memorandum May 20 to the heads of executive departments and agencies that should limit some of the worst preemption practices used by the Bush administration.

The memo outlines the general policy of the Obama administration as one in which:

…preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.

The memo directs agencies to stop using one of the Bush administration's favorite practices of inserting preemption language into the preambles of regulations – sometimes after the regulation had gone through the notice-and-comment process and been completed. Bush used this approach to preemption mainly to protect product manufacturers from state-level lawsuits by citizens who had been damaged by defective or malfunctioning products.

The Obama memo prevents this practice unless preemption provisions are in the regulation itself. Preemption in the regulation should be included only after proper legal vetting including the consideration of the nine federalism principles set out in Executive Order 13132 issued in 1999.

Just as important, however, is a provision in the memo requiring agencies to review regulations issued over the last ten years that contain preemption statements in either the preambles or the codified provisions of regulations to determine if the preemption provisions are legally justified. If the agencies find rules in which preemption cannot be justified, the agencies should take "appropriate action."