Preemption

I expect the preemption provision will pass. Preemption is the tool of choice on the federal level when our corporate masters decide to strip us of some remedy.

For instance, if your health insurance is provided as a part of your employment, and your insurer decides that your policy does not cover some procedure that your physician says is vital for your well being, and you die because you did not have the life saving procedure, you might think that your heirs would have a lawsuit against the insurance company. Think again. Congress has enacted legislation called the Employee Retirement Income Security Act (ERISA), which has been held to preempt any state law that would give a person the right to sue concerning a violation of employer provided health insurance. The theory is that when congress legislates in a field, the federal government has occupied that area of law to the exclusion of the states and the state courts. The federal government has preempted the area of law, and since the federal government is superior, the states are preempted from acting in any way concerning that area of the law.

Here’s the really good part from the view of the corporations: ERISA doesn’t really give much of a remedy to someone who is wronged by an insurance company. So, the states are prevented from acting in any preempted area, including suits brought in the courts about the subject preempted, and the federal law doesn’t really provide any remedy. The result? Health insurance companies do pretty much what they want, and you can’t sue the bastards.

Preemption slowly creeps in to take away citizens’ access to the courts. You can only sue a mobile home manufacturer or dealer in very limited circumstances, and if you do your case can be removed to the federal court, where the judges are usually much more sympathetic to the corporations. Why? Preemption. Congress passed an act dealing with manufactured homes and the courts have ruled that the federal government has preempted the field to the exclusion of the states. It’s hard to bring a suit against an auto manufacturer involving product safety without being entwined in a dispute over whether the field has been preempted by the federal government. Labor disputes are the same.

Here’s the pattern. Pass some law in congress that deals with a field, but gives few, if any rights to an individual. Say in the legislation that there is intent by congress to preempt the field to the exclusion of the states. Even if that isn’t said in the legislation, federal courts will often rule that preemption is implied, and dismiss any state court suit that touches on the area about which legislation concerns. Congress gets to brag they’ve tackled some problem for the consumer, and they still get to collect a bundle in campaign contributions (who knows what else?) from the industry that has done away with annoying consumer lawsuits.

In the drilling legislation our wonderful legislature will claim they have regulated the industry. Of course, beyond some cosmetic procedures, they will have done nothing. They will go on to take away power in local governments, like county commissions or city councils, to enact any law concerning drilling. Local governments will be preempted from making any law about drilling. This is probably a sure thing unless thousands march upon the capital.

We’ll be lucky if they don’t go further. They may create some administrative appeal mechanism for landowners who have complaints against drillers. The administrative procedure will likely provide few and limited remedies, but the legislation might provide that recourse to the administrative remedy is the only remedy available. Suits in court, where you have an elected judge and a jury of local citizens, may be preempted.