The principle subjects of federal conflict with state and local governance are few. But their recurring, indispensible applications in the game of Monopoly are many.
Following is a partial digest of a report on "preemptive" federal statutes that was commissioned by Rep. Henry Waxman (D-CA-30) and released online 6 June, 2006. The report is available as HTML summary and in a 54 pg. pdf format.
I don't deny that partisan bias may well be Waxman's motive for ordering this report; undoubtedly, there are other instances of nonpartisan support for law which suborns democracy. But I trust that its conclusions sufficiently illustrate how Preemptive Doctrine is being waged as well in the domestic theater, in our neighborhoods and comprehension of American civic life. I recommend you read the report in its entirety, then share this information with your Republican neighbors.
Another Country, Another Front
Recent polls indicate that a majority of Americans are dissatisfied with the current administration's management of the war in Iraq. But there is no consensus that articulates public acceptance of the justification for war. The administration has reasoned the war is a necessity, prosecutorial, prophyllactic or
preventative, promotional or humanitarian -- at least -- ridding a sovereign people of the despot Saddam. The rhetorical dissonance unleashed on the international community back in 2002 was formally titled the Preemptive (War) Doctrine, "anticipatory use of force in the face of imminent attack" by the US federal government, exclusively. And in light of war-time powers vested in the administration since then, more Americans understand at least that the Doctrine's application to domestic territory is to quash any
threat, crimminal or bureaucratic, to urgent, Executive direction.
With the exception of an 18-month period between June, 2001, and January, 2003, it appears that Republican-controlled Congresses have systematically eliminated challenges to federal authorities by state and local governments, their treasuries and employees, and the doubtful purposes of their legislatures -- the ability of citizens to formulate social policies and produce the goods and services that reflect values peculiar to their communities.
The report exerpted below was prepared by the House Minority Staff Special Investigations Division, Committee on Government Reform. It asks, What federal legislation -- apart from federal agencies' regulations -- has preempted state and local laws or regulations? It answers with bills and enactments that explicitly (1) bar powers of state legislature; (2) displace state laws or regulations; (3) impose limitations on or seize jurisdiction from state courts; or all of the above.
Historically, federal legislation established minimal civil and consumer protections. What distinguishes the last three Congresses is the determination to set "maximum" requirements. In some instances, the state standards must be identical to federal ones; in many instances, federal maxima actually minimize or bar more stringent state standards in order to indemnify federal agents or contractors, while blocking possible complaints.
For example, the National Uniformity for Food Act (H.R. 4167, March, 2006) prohibits states from requiring consumer warning labels and invalidates state standards of food safety that are not identical to federal ones. "While states could theoretically petition the FDA for permission to keep a law, there are no limits on FDA's ability to reject a petition and no funding provided for FDA to review such petitions."
Federalizing Rights Reserved to The People
In his first inaugural address, T. Jefferson, co-author of American scripture, remarked that state governments provided "the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies." Yet ...
- "Over the past five years, the House and the Senate have voted 57 times to preempt state authority. The total number of preemptive provisions passed by the House or Senate is greater than 57, because some of the bills contain multiple premptive provisions. In total, the House and the Senate have passed 73 distinct preemptive provisions over the last five years."
- "These votes to preempt state authorities have resulted in the enactment of 27 laws, signed by the President, that override state law. In total, these 27 laws include 39 distinct preemptive provisions."
- "This report does not quantify the total number of state laws and regulations that have been overturned by the Congress, as that information is generally not available. However, the aggregate number is in the hundreds, if not thousands. Partial data on preempted state laws is available for 6 of the 27 premptive laws enacted over the last five years. These laws have overridden at least 92 state laws or regulations. Partial data is also available for 6 preemptive bills passed by the House or the Senate but not [yet] enacted into law. Together, these 12 laws and bills have overidden or would override at least 314 state laws or regulations."
Here is the HTML list of laws and bills pending ratification by either the House or Senate.
Starving State Sovereignty
As occams hatchet remarked in Crossing the Godwin Divide, "Our democracy is hanging by a few very thin threads. Now is not the time to back away from hard truths -- "; You may believe that your right to worship, bear arms, cultivate and preserve land, assemble and file suit is sacrosanct, because you are not a foreign terrorist. But now, as of this day, the neighbors to whom you entrust your livelihood are unable to protect it.
39 State Attorney Generals signed a letter to members of Congress to oppose passage of the National Uniformity for Food Act, because " Food safety has been largely a matter of state law and oversight for well more than a century. State and local agencies perform more than 80 percent of food safety work, with federal agencies often seeking their assistance. There is nothing in the public record showing that federal uniformity in this area provides a greater level of protection to consumers or is in the public interest."
The American Bar Associatiion wrote to House members a letter, in October, 2005, that opposed the Lawsuit Abuse Reduction Act of 2005 (H.R. 420), arguing: "State rules relating to venue aand jurisdiction should be developed at the state level and supported by extensive study, vetted publicly, and made subject to comment by the legal profession. To do otherwise would violate our long-established principles of federalism."
The National Conference of State Legislatures has written to House Speaker Hastert and House Minority Leader Pelosi (7/26/05) a letter opposing passage of the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2005 (H.R. 5), stating that "American federalism contemplates diversity among the states in establing rules and respects the ability of the states to act in their own best interests in matters pertaining to civil liability due to negligence."
The Gasoline for America's Security Act of 2005 (H.R. 3893), passed by the House in October, 2005, removes state and local permitting authority to DOE, which minimizes more stringent state's standards for (1) siting and operation of oil refineries on federal lands within a state and (2) requirements for clean-burning gasoline to reduce air pollution.
This bill was opposed by the National League of Cities, the US Conference of Mayors, the National Association of Counties, the National Conference of State Legislatures, the State and Territorial Air Pollution Program Administrators, the Association of Local Air Pollution Control Officials, and Attorney Generals of NY, CA, CT, IL, MD, MA, NJ, VT, and WI.
The report elaborates, "In addition to circumventing the state and local permitting processes, HR 3839 removes jurisdiction over any disputes from state court to federal court. And a provision within section 102 awards attorney's fees to the prevailing party in litigation only in cases defending the award of a refinery permit, not the denial of a permit." If a state or locality were to sue the federal government for improperly granting a permit to an oil company and lose its case, the state would have to pay the federal government's attorney's fees; if an oil company were to sue a state in federal court for delaying a permit and lose its case, the company would not pay the state's attorney's fees.
Here is the HTML list of laws and bills pending ratification by either the House or Senate.
The Other Constitutional Crisis
Like the scope of Unitary Power, Preemptive doctrine serves no one but its author. Kagro X writes that doors are closing on impeaching the man and the validity of his loyalties. Waxman has revealed the doors closing on the idea of republic itself, when the authority of 285 million people is trivialized by closed committees of 534. Federal office is at once a mockery of representative democracy and an instrument of totalitarian hygiene.
In this election year, public discourse skirts the paradoxes of private enterprise measured as party "discipline", unamed rights to privacy under surveillance, and security at the polls. We deride certain charicatures of public service -- the "culture of corruption", the "K Street" lobby and revolving doors, the occasional revelation of fraud and bribery -- and ignore others.
Roll Call for H.R. 4167: 212 Republicans, 71 Democrats. (record) Barrow (GA-12), Bean (FL-8), Berry (AR-01), Bishop (GA-02), Boren (OK-02), Boswell (IA-03), Boucher (VA-09), Boyd (FL-02), Cardoza (CA-18), Chandler (KY-06), Clay (MD-01), Cleaver (MO-05), Costello (IL-12), Cramer (AL-05), Crowley (NY-07), Cuellar (TX-28), Davis (AL-07), Davis (IL-07), Davis (TN-04), Delahunt (MA-10), Doyle (PA-14), Edwards (TX-17), Emanuel (IL-05), Etheridge (NC-02), Gordon (TN-06), Green (TX-09), Herseth (SD), Higgins (NY-27), Hinojosa (TX-15), Holden (PA-17), Hooley (OR-05), Isreal (NY-02), Jackson-Lee (TX-18), Jefferson (LA-02), Johnson (TX-30), Jones (OH-11), Kanjorski (PA-11), Marshall (GA-03), Matheson (UT-02), McIntyre (NC-07), Meek (FL-17), Meeks (NY-06), Melancon (LA-03), Michaud (ME-02), Millender-McDonald (CA-37), Miller (NC-13), Miller (CA-42), Moore (KS-03), Moran (VA-08), Murtha (PA-12), Ortiz (TX-27), Peterson (MN-07), Price (NC-04), Reyes (TX-16), Ross (AR-04), Ruppersberger (MD-02), Rush (IL-01), Ryan (OH-17), Scott (GA-13), Skelton (MO-04), Spratt (SC-05), Strickland (OH-06), Tanner (TN-08), Taylor (MS-04), Thompson (MS-02), Towns (NY-10), Velasquez (NY-12), Watt (NC-12), Wynn (MD-04)
We hardly question who is defending our freedom to choose or our ability to discern fact from lie. We observe blankly that our ability to dislodge such persons from office peacefully is as uncertain as it is attenuated by design ... under color of organizational leadership and with absolute impunity.
Is the midterm election indeed the time to replace the Constitution? with GAAP or compliance with Sarbanes-Oxley? New York Daily News evaluates the Democratic Party's extremely lean marketing message thus: It "doesn't mention Iraq". Rather the News intimates "New Direction for America" is a declaration of intramural sport.
The party is pushing higher wages, lower gas prices and cheaper college loans in its "New Direction for America" platform, House Minority Leader Nancy Pelosi of California said in the Democrats' weekly radio address yesterday. [...] Party leaders are pushing a coordinated message in their quest to win 15 House seats and six in the Senate, enough to wrest control of Congress from Republican hands.
But in a Democratic Caucus
press release, carried also by freerepublic.com, the proprietor of democraticleader.house.gov, inadvertantly acknowledges
nonpartisan power to silence the republic.
On the first day that Congress comes into session next year, if Democrats are successful at the polls, the first piece of legislation will include our reform package to make it an honest Congress, second, we will do our civility package to make it a bipartisan Congress, and third, we will pass our accountability legislation that will say no new deficit spending, pay-as-you go, and audit the books. [...]
Nowhere is the need for a New Direction for America more obvious than in Iraq. Certainly, the most important is the loss of life; we passed 2,500 lives lost, and nearly 20,000 have been injured, half of them permanently. We also face the loss of our reputation in the world and the loss of our strength in terms of our military capability to protect our security. But, what about the money? [...]
Energy, minimum wage, health care, higher education, fiscal soundness -- this is the New Direction in which we want to take our country. It meets the needs of the American people; it respects their concerns, their aspirations, their hopes, their dreams, and their challenges. But we must do it in a fiscally sound way [emphasis added]
Whether we align ourselves with the assurances of incumbent leaders or religious tenets, we assume that, at the end of the day, all the little people will be free to go about their business where they left it they day before ... we hardly expect that market conditions on which monopoly controls thrive can and will be replicated at the scale of federal government.
Seek out you neighbors. Break the silence that separates millions. Start by asking them to vote.
UPDATE: 6.23.06 BushGreenwatch.org publishes the story White House, GOP Leaders Plan All-Out Assault on Federal Protections by creating a "sunset commission", an unelected body with the power to recommend whether a program lives or dies, and then move its recommendations through Congress on a fast-track basis with limited debate and no amendments. "
GOP congressional leaders may bring to a vote within weeks a proposal that could literally wipe out any federal program that protects public health or the environment - or for that matter civil rights, poverty programs, auto safety, education, affordable housing, Head Start, workplace safety or any other activity targeted by anti-regulatory forces.
A coalition of public interest groups is fighting to block enactment of a sunset commission. Information is available through the
Sunset Commission Action Center at OMBWatch.org.