CPSIA – Turns Out that the Government CAN Assert Preemption

And you thought state regulation of children’s products was a fait accompli, nothing we can do about it. The proliferation of state safety regulations is a major hindrance to interstate commerce and puts small and medium-sized businesses in a very risky position. Who can possibly master the federal system of safety laws and regulations plus 38 states’ own unique versions (plus the EU, plus Canada, plus Japan, plus . . . plus . . . plus)? No one.

The CPSIA addressed this mess by ENCOURAGING IT. The law does not preempt a variety of state laws relating to the safety of children’s products. Among the notable laws so exempted, California’s Proposition 65 is especially troubling. That said, I cannot recall a single word of a single state children’s product safety law that has been preempted by the federal government. It’s the Wild West out there.

Worse yet, this subject is among the many that are “off limits”. In other words, we are advised to keep our opinions on preemption to ourselves for risk of “offending” the controlling Democratic party. The non-preemption of state laws that conflict with the CPSIA, CPSA and policy and regulations of the CPSC are to be tolerated, I guess. We have no say in this. Like so many things nowadays . . . .

Aha, but when the liberals don’t like the action of the states, well then preemption is apparently a viable option. So today the federal government decided to take action against the Arizona immigration law. [I am a minority and am generally fearful of government rules that encroach on protections for minorities. Of course, like most of the media and America at large, I haven't read the Arizona law. So while I am directionally in favor of knocking it out, I freely admit I don't know much about this controversy other than the things I have gleaned from other people's analysis.] So I guess preemption is a viable option . . . if the motivation is there.

The federal complaint makes many compelling assertions about the value and importance of preemption in the case of immigration law . . . and many of these assertions could just as easily be levied against state regulation of children’s products. It will never happen, of course, because that might offend the “public interest groups” behind the CPSIA. Besides, who can trust companies anyhow . . . .

Some pertinent quotes (emphasis added):

“In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. . . . The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.“

“The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Arizona from supplanting the federal government’s immigration regime with its own state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government.”

“In crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests. . . . The laws also take into account other uniquely national interests, including facilitating trade and commerce . . . .”

“Because S.B. 1070, in both its singularly stated purpose and necessary operation, conflicts with the federal government’s balance of competing objectives in the enforcement of the federal immigration laws, its passage already has had foreign policy implications for U.S. diplomatic relations with other countries, including Mexico and many others. S.B. 1070 has also had foreign policy implications concerning specific national interests regarding national security, drug enforcement, tourism, trade, and a variety of other issues. . . . Numerous other states are contemplating passing legislation similar to S.B. 1070.”

The Feds have noted that the patchwork of local laws would likely prove highly disruptive to efforts to coordinate a national policy on this topic. They are apparently fearful that the Arizona law will lead to many more just like it in other states. Among other reasons to fear the new immigration laws, local laws can have international implications and can hurt trade. I think I know what they are getting at . . . . Consider the market effects of the noxious Proposition 65 and the truly awful and frightening Green Chemistry initiative oozing forth from California in our direction. The case for this preemption lawsuit is eerily similar to the case for preemption of local safety laws. Unfortunately, we will never get this help unless the Feds decide that the system is so out-of-whack that a lawsuit must be filed. With Dems in charge of Congress who are the blood brothers of consumer groups, this will NEVER happen. Too bad for us.

I feel the federal government’s pain on the Arizona law. Too bad they don’t feel mine.

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CPSIA – Turns Out that the Government CAN Assert Preemption

CPSIA – Misery Loves Company

Well, well, look who’s haunting Toyota these days – if it isn’t David Strickland, Administrator of the U.S. National Highway Traffic Safety Administration. Strickland is well-known to the cognoscenti of the CPSIA as the lead staffer in the Senate for our favorite law and as one of its principal authors/shepherds. Having wreaked sufficient havoc with the CPSIA sufficiently to impress the big boss, he was rewarded by Obama with the top job at NHTSA where he can now work his magic to reduce Toyota and the auto industry to a steaming hulk of debris in short order. And that’s not all – Mr. Waxman bared his claws on Toyota, too, asking who knew what when, holding hearings, providing more and more fodder for the media.

How did Toyota get in this mess? Well, they had a big recall, and the newspapers, TV commentators and panicked members of Congress worked in concert to create a frenzy. Wow, that sounds somehow . . . familiar. Isn’t this an election year, too, just like 2008? In other words, a really good time to identify a bad guy, whip up a crisis and then solve it? You know, to protect the populace just before polls open, having worked the people up into a lather. The time-honored, sure-fire formula for reelection. . . . . The CPSIA formula being rolled out again also includes calls for massive corporate penalties, spiraling litigation, increased regulation and more government involvement in oversight of the industry (because everything is better with more government). Sounds GREAT!

And who better to operate this paranoia machinery than Mr. David Strickland in partnership with Henry Waxman? With Strickland’s credentials, it’s only a matter of time before Toyota is so pilloried and shamed that it will become a shadow of its former self.

I have been warned to stay away from the Toyota story. I have been told, “everybody hates Toyota in Washington”, no sympathy is possible. Nonetheless, I resent the effort to destroy a great company because the opportunity to create a crisis presented itself for some Democrats in need of headlines. The parallel to the CPSIA saga is just too compelling. Let me ask you Toyota owners – is this feeding frenzy what you want? Have you grown tired of the good service at the Lexus dealership, the strong record of reliability of your Camry, the innovation of your prized Prius? Wasn’t it just months ago that you drove your Prius as some sort of Green badge of honor? Have you lost confidence in Toyota based on your personal experience . . . or because of the relentless barrage of bad publicity on TV and in the papers?

It’s a great tradition in Congress these days – bring the mighty down low, and be sure to erode all confidence in business enterprises. It’s a hallmark of leading Democrat today. With Strickland in charge at NHTSA, you can be sure that the damage to Toyota will be severe.

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CPSIA – Misery Loves Company

CPSIA – A Rich Irony, Courtesy of the CPSC

As you probably know by now, Mattel won approval from the CPSC for its seven proprietary overseas labs to conduct official and certified safety tests under the CPSIA.

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CPSIA – A Rich Irony, Courtesy of the CPSC