In a disturbing new trend, unelected federal regulators are usurping states' powers to protect their citizens, state legislators charged Thursday (April 6) at a national gathering in Washington, D.C.
At their annual spring meeting, leaders of the National Conference of State Legislatures (NCSL) ratcheted up criticism of new federal regulatory changes and legislation that would limit state authority in areas such as consumer protection and criminal law and that are foisting new costs on states.
"Federal regulatory preemption is nothing more than a backdoor, underhanded means by which unelected federal bureaucrats impose their will on the states," New York state Sen. Michael Balboni (R), chair of NCSL's standing committees, said at a news conference. NCSL is a bipartisan organization for the nation's 7,382 state legislators that researches policy and advocates for states' interests with the federal branch.
Lawmakers said they are seeing a rise in use of the federal regulatory process to override state laws. They pointed to a recent proposal by the National Highway Transportation Safety Administration designed to improve vehicle roof-crush standards that could cost states an estimated $49 million to $71 million a year, according to a study commissioned by NCSL.
The proposed rule would preempt state laws that hold auto manufacturers to stricter liability standards and would give the auto industry immunity from state lawsuits seeking damages, while states carry the burden of supporting those who become permanently disabled and cannot recover their medical costs.
The NHTSA is in the process of reviewing hundreds of public comments submitted in response to the proposed roof-crush standards and will not finalize the rule for months, said NHTSA spokesperson Rae Tyson.
Releasing an update to its "Preemption Monitor," a report designed to draw attention to congressional proposals that usurp state authority, NCSL also criticized several other recent regulatory changes by federal agencies.
It cited a March 30 ruling from the U.S. Department of Transportation that says states such as California cannot impose greenhouse gas emission limits on vehicles without a waiver from the U.S. Environmental Protection Agency (EPA). California approved such emission limits in 2004, but the EPA has refused to grant a waiver sanctioning the new standards, which would require 25 percent carbon-dioxide emission cuts in new cars and trucks starting in 2009.
Because California began regulating pollution before the federal government, it has special authority to set its own vehicle emissions standards, and other states are allowed to follow either California's or the federal government's standards. Ten states (Washington, Maine, Connecticut, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island and Vermont) have opted to follow California's stricter standards.
Other recent regulatory changes include a Food and Drug Administration rule on prescription drug labels that overrides state requirements to list side effects on drug labels and new standards for mattress flammability that preempt any conflicting state laws.
The report also identified 72 bills pending in Congress that would limit states' powers in a variety of areas, including immigration reform, criminal law, tort reform, driver's license security, and the environment.
NCSL President-elect and Texas state Sen. Leticia Van de Putte (D) said that the federal government is taking a one-size-fits-all approach to public policy. "Our federal system of government was designed so that each state could address the needs of its own people. These blanket solutions to multi-faceted problems just don't work," Van de Putte said.
In the past year, Congress has passed several laws that preempt state authority, according to NCSL. One of the most prominent is the Real ID Act, which for the first time imposes national rules on how states are to check identification when issuing driver's licenses. The new federal standards could cost states billions of dollars, and Congress so far has given states no money to help carry out the new law.
Congress also included a law in the renewal of the U.S.A. Patriot Act last month intended to combat methamphetamine drug abuse. The new measure has caused confusion for states because it is not clear whether it preempts 10 states that have adopted tougher restrictions than the federal government against sale of pseudoephedrine, an ingredient in over-the-counter cold tablets and a main ingredient of methamphetamine.
"The language of the bill is not clear as to whether it's an outright preemption eliminating all previous enacted state laws or if it's a minimum standard so states can keep their own laws that are more strict," said NCSL analyst Trina Caudle.