High Court Rulings Threaten State 'Labs of Democracy'

How to be sure that toy under the holiday tree has no lead paint? With only a month of shopping days remaining, the public depends -- more than at any other time -- on our federal regulatory agencies' ability to protect us from health and safety risks from toys, clothing and other goods.

So when an appointed regulator asks Congress to prevent her agency from doing its job, we should be concerned. The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress "not to approve the bulk of legislation that would increase the agency's authority, double its budget and sharply increase its dwindling staff." Small wonder the New York Times put that story on its front page Oct. 29.

Other federal agencies that we might expect to be watchdogs -- the Environmental Protection Agency, the Food and Drug Administration, and the Federal Communications Commission -- are either hamstrung by resources grossly inadequate to their stated tasks, or worse, staffed by anti-regulatory types, like Nord.

Lost in the irony of Nord's embarrassing "no, thanks" is that federal agencies are but one among many ways to address the plethora of challenges we now face.

Remember the 10th Amendment? "The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Justice Louis Brandeis famously lauded state and local governments as "laboratories of democracy" that might show the way.

Long before federal regulatory agencies even existed, local and state governments were seeing to their general welfare. Many are still trying. Yet they face considerable opposition not only from corporations being regulated, which we would expect, but from a federal tribunal that rarely gets the credit for annulling their efforts, and then "bumping up" such matters to the underachieving federal regulators. (My new book, "Gaveling Down the Rabble," discusses this in detail.)

Take, for instance, the matter of corporate agriculture. A South Dakota constitutional amendment, passed by 59 percent in 1998, prohibited most corporate ownership of real estate used for agriculture. In 2004, the U.S. Supreme Court effectively threw it out on grounds that it was essentially a "trade barrier."

Nebraska's even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court, citing the South Dakota case.

The Supreme Court has struck down over 1,200 state and local laws. Following this lead, lower federal courts struck down countless others. The relentless narrowing of what the court deems "constitutional" has a chilling effect on lawmakers at all levels, especially state and local, at a time when we need all the help and ideas we can get.

Other examples of thwarted state efforts abound. Take oil spills, for instance. Washington state regulations aimed at insuring proper training, adequate staffing and other safety measures in the operation of tankers along that state's coastline were declared unconstitutional by the U.S. Supreme Court in 2000. According to the court's interpretation, states cannot impose conditions more stringent than those in a weaker federal law.

This is part of the court's pre-emption doctrine, which it has often applied so that federal law sets not a minimum standard, but a maximum one. Instead of setting a floor for states, the court has set a ceiling, disallowing the more protective laws that many localities desire.

In 1997, a Maine property tax law encouraging in-state charities to serve Maine residents was declared unconstitutional as interfering with "free trade" among the states. In 1995, the Illinois Consumer Fraud Act outlining relief from unfair or deceptive marketing practices was deemed unconstitutional as applied to an airline corporation. In 1994, an Oregon state law intended to reduce the state's burden of handling solid waste from out of state was declared unconstitutional as a "trade barrier" by the Supreme Court.

Other "progressive" state and local laws concerning protection of water resources, milk labeling (rBGH), conservation of fossil fuels, protecting fledgling industries, bans on products made with prison and child labor, protection of native species, place-of-origin product labeling, toxic waste regulations, support for local business, meat handling standards, and on and on, have been deep-sixed by Supreme Court rulings based on increasingly arcane, if not inane, doctrines.

The beneficiaries of this "narrowing" have been, for the most part, big corporations. The high court's pro-corporate doctrines have had the effect of laying down a weighty tarp of "unconstitutionality" over outbreaks of democracy, lest they break out and become pandemic.

Of course, I would like to see strong, functional federal regulatory agencies that do more than act as valets to large corporations. But let's not forget the role that local and state governments can play, have played, and must again play in promoting the general welfare.

Jane Anne Morris of Madison is a corporate anthropologist. Her new book, "Gaveling Down the Rabble: How 'Free Trade' Is Stealing Our Democracy," explores these and related issues.