President Obama’s Memorandum of May 20, 2009 addressed to the heads of his federal executive departments and agencies states “the general policy of my Administration that 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.” Accordingly, the President’s memo directs agency heads not to include statements about preempting state law when issuing new regulations, and to review all regulations issued in the past ten years for potential deletion of statements preempting state law, unless such federal preemption of state law is justified by clear statutory language or other bases previously articulated in 1999 Presidential Executive Order 13132 (Federalism). The President’s new preemption memo does not in itself change any federal law or regulation, but it clearly signals the new administration’s policy shift allowing a larger role for individual states to make and enforce rules and regulations in excess of or addition to federal requirements, such as in the areas of safety, health, consumer protection and “public welfare”.
Meanwhile, the federal Department of Justice has officially withdrawn its final September, 2008 policy report, Competition and Monopoly: Single-Firm Conduct and Section 2 of the Sherman Act, concerning monopolization offenses under the antitrust law. Thus DOJ antitrust enforcement policy is replacing the assumption that competitive conduct is driven by efficiency and cost reduction, with the assumption that “we can no longer rely upon the marketplace to ensure that competition and consumers will be protected”. (U.S. Dept. of Justice Press Release, No. 09-459, May 11, 2009)