On Agencies Declaring Their Actions to Preempt State Law

(Via WSJ Law blog)

The Post notes what I’ve noted before — a trend of federal agencies asserting that their rules preempt state tort lawsuits.  Both the WSJ blog and the Post assume something that’s not self-evident to me — that the agency’s views on the preemptive power of their rules mean anything.

The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.

The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers’ ability to recover damages for injuries from agency-approved drugs.
Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

I assume that courts are interested in hearing from the agencies in question (or at least willing to listen), just as they’re interested in other amici (or at least willing to listen).  Indeed, I’d guess the courts are more interested in the agencies’ views than, say, mine.

But the question of implied preemption by Congress is a question for the courts — and the agency saying so can’t make it express preemption.

Or can it?  Am I missing something?  Comments are, as always, open.

Update: The CPSC yesterday approved new mattress guidelines and declared that the guidelines would have preemptive effect.  As with the FDA, the declaration was in the preamble.

Also, PrawfsBlawg has more.

(Prior posts on preemption by regulation: first, second, third.)