The world is sighing with relief.
The Bush era is dying, but the toxic legacy of America’s worst president will linger like DDT unless the Obama administration acts quickly to restore constitutional and regulatory protections its predecessor eviscerated.
From signing statements to spying on U.S. citizens, Bush implemented an under-the-radar pattern of abuses that also included a quiet conspiracy to pre-empt, or bar, the public’s right to sue corporations for damages.
From March 2002 to September 2008, the Bush administration inserted pre-emption language or proposed rule changes more than 56 times, across seven federal agencies. The American Association for Justice, a trial lawyers association, argues that the agencies’ usurpation of states’ rights is unconstitutional, and that their failure to give public notice and allow comment was illegal.
The fate of Bush's pre-emption push now lies with the Supreme Court.
The day before President-elect Barack Obama’s victory, the high court heard arguments in Wyeth v. Levine. A decision in that case—which is expected this spring—may cripple the century-old right of consumers, or their survivors, to sue corporations in state court over injury or death from dangerous products.
After her arm developed gangrene and had to be amputated because of a known complication from Wyeth's anti-nausea drug Phenergan, Diana Levine sued the drug company for compensatory damages. Vermont courts awarded Levine, a musician, $6.8 million. Wyeth appealed all the way to the Supreme Court. (See October issue for details of the case.)
Wyeth v. Levine is a test case for the Bush doctrine that federal approval of a drug (or more broadly, any product) immunizes the manufacturer from legal responsibility if the product fails.
The list of new pre-emptions is both broad and specific. The Bush administration gave the automotive industry such custom-made boons as language barring suits over the safety of air bags, safety belts, roof crush strength, motorcycle and car brakes and hoses, side impact protection, school bus passenger seating and crash protection, and child restraint systems. New language also pre-empts states from setting average fuel economy standards for light trucks.
Bureaucratic fiat now immunizes railroads against suits over crashworthiness of tank cars carrying hazardous materials, and the integrity of the rails.
Consumer products get a liability pass for some nicotine products; mattress flammability standards; dietary supplements; claims of “lean”; dietary sweeteners; and raw fruits, vegetables and fish.
Other pre-emptive language immunizes drugs and cosmetics companies against damages caused by over-the-counter contraceptives, dandruff and skin bleaching products, nasal congestion medication, laxatives and sunscreen, as well as approved drugs, biologics and medical devices. It protects corporations from lawsuits over requirements for pregnancy and lactation labeling for drugs, suicide while taking SSRI antidepressants, including Zoloft, manufacturer's claim that Paxil is non-habit forming, and some requirements for drug companies to warn the public of a drug’s potential side-effects.
The list even adds lawsuit protection for chemical facilities and the anti-terrorism regulations they are supposed to apply.
In a potent symbol of the failure of conservative Republicanism, ex-Federal Reserve Chair Alan Greenspan testified before Congress on Oct. 23 that: “I made a mistake in presuming that the self-interests of organizations ... were best capable of protecting their own shareholders and their equity in the firms,” he said, omitting mention of protecting taxpayers and consumers. “I have found a flaw.”
“In other words," said committee chair Rep. Henry Waxman (D-Calif.), “you found that your view of the world, your ideology, was not right, it was not working.”
“Absolutely, precisely,” Greenspan responded. “You know, that’s precisely the reason I was shocked, because I have been going for 40 years or more with very considerable evidence that it was working exceptionally well.”
Greenspan got even his mea culpa wrong. A far more significant flaw is his failure, and that of the Bush administration, to differentiate between policies that work “exceptionally well” for corporations and the market, and those that serve the public good.
Some hope comes from the agencies themselves, where lack of funding and support has left bureaucrats frustrated and angry. Freedom of Information Act documents reveal that some Food and Drug Administration scientists and career employees strongly support consumers’ right to sue, and that they stand firmly with Levine against Wyeth.
Whether the Bush administration’s legacy of pro-corporate, anti-consumer pre-emptions will stand, lies not only on the Supreme Court. It now also rests on the new Obama administration, which must make good on its promise to use government to protect the public.