April 13, 2006
Thursday

WASHINGTON -- From legislation that sets new rules for sales of over-the-counter cold remedies to efforts by Congress to establish unified food labels nationwide, the federal government is increasingly encroaching on what traditionally has been left to states to sort out.

State lawmakers say they are concerned about the increasing reach of federal authorities into their jurisdictions - especially by a Republican-controlled Congress elected on a platform that promised to lessen Washington's influence over the daily lives of Americans.

The National Conference of State Legislatures (NCSL) counts 72 measures in this Congress that would usurp state authority - a 35 percent increase over measures the group counted in January.

Michael Balboni, a Republican state senator from New York, said it's not just Congress but the federal bureaucracy in general that is treading on state toes. And he said he is mystified by the change in philosophy in Washington under the control of his party.

"This is full of irony for a party that professes about a return to the constitutional sharing of power," he said. He said the Founding Fathers intended for the states to drive issues not specifically given to the federal government.

Balboni links the changing attitudes increasing Washington's powers to the post-9/11 drive to secure America. He said the trend covers an array of issues - such as a new law limiting sales of over-the-counter cold remedies containing pseudo-ephedrine, which was part of the Patriot Act renewal; congressional moves to regulate what can be put on food labels; and proposed federal mattress-flammability standards that specifically ban states from enacting tougher measures.

"Congress is very active taking over on a whole array of issues," he said.

State lawmakers are furious about legislation that passed the House this year that would expand the authority of the U.S. Food and Drug Administration to decide what can be put on food labels. The legislation sought by the food industry was largely aimed at overturning a California referendum requiring point-of-purchase labels on foods containing chemicals known to cause cancer or birth defects.

But the NCSL said the proposed law could also override a number of other long-standing food-safety laws in several states requiring warning labels on raw shellfish, and concerning egg safety in Pennsylvania and Illinois. It also threatens to undermine a law in Alaska requiring the labeling of any genetically altered fish or fish products, the group says.

State lawmakers said the requirement in the legislation that they get prior approval for any food-label law from the FDA would hamper their ability to deal with any new food-borne pathogens that scientists may find, or deal quickly with any other issues the federal government hasn't addressed.

But Cal Dooley, president of the Food Products Association, disagreed. "Federal pre-emption is an argument of convenience,'' he said. He said consumers would benefit if only one standard was used for labeling nationwide.

States are also alarmed that Congress wants to require states and local governments to bear the burden of enforcing any new immigration laws Congress is considering. For example, House-passed measures allowing for felony prosecution of illegal immigrants would require that state and local police detain such immigrants. Under current laws, illegal presence is not a criminal offense, and so police do not hold illegals for immigration violations alone.

In the wake of Hurricane Katrina, Congress is also considering new "good Samaritan" laws that would give immunity from lawsuits to disaster-relief volunteers or employers, even in cases of gross negligence. States already provide relief from lawsuits to nonprofits, but not if willful, wanton or reckless misconduct resulted in injuries.

Don Balfour, chairman of the Republican caucus in the Georgia state Senate and head of an NSCL committee monitoring federal pre-emption, said that encroaching on state powers discourages states from experimenting with new solutions to problems.

"These unwarranted power grabs by the federal government subvert the federal system, choke off innovation, and ignore diversity among states," he said.

State lawmakers complain that Congress still hasn't come up with promised funding for changes ordered by the Real ID Act, which requires motor-vehicle administrations to issue new tamper-proof driver's licenses and directs counties to take new steps to protect the authenticity of birth certificates.

Additionally, state legislators protest that federal agencies also are considering regulations that would wipe out long-standing laws in states. For example: Proposals by the National Highway Transportation Safety Administration involving crush-proof standards for sport utility vehicles. Such regulations would override product liability laws in states that hold automobile manufacturers to a stricter standard than what the federal government is seeking.

A spokesman for the highway administration said the rule was only a proposal, and that the agency has already received many objections to it from lawyers.

Texas state Sen. Leticia Van de Putte, a Democrat, said the federal government seems to have adopted "a one-size-fits-all approach to public policy" that restricts the ability of state elected officials to come up with solutions.

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