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The CPSIA, The ESA, The CWA and Obamacare

Sunday, November 1, 2009  |  posted by Hugh Hewitt
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The federal statutes I and my law partners deal with the most are the Consumer Products Safety Improvement Act (“CPSIA”), the Endangered Species Act (“ESA”) and the Clean Water Act (“CWA”).

The CPSIA is less than a year old. The ESA and CWA are both more than 35 years old.

All three laws continue to surprise and confuse the owners and operators of the businesses they regulate, and to extract enormous costs from the private sector while burdening the overall economy with extraordinary but largely hidden costs.

On Saturday the New York Times recounted how CPSIA has devastated the toy business. What the article did not recount is how the burdens of CPSIA have extended far, far beyond toys to burden every industry in which any product is made with the sale to a child in mind.

Hardly a day goes by when either or both of the ESA and CWA operate to delay, cripple or totally block the use of land for productive, job-creating construction projects. And the toll of these statutes is increasing and becoming ever more unpredictable. The catastrophe of the water cut-off in California’s central valley as a result of the listing of the delta smelt is just one example of this extraordinary toll. (The story is well and quickly told by Janet Levy at The American Thinker.)

Very soon the activists who know how to use the ESA and the CWA (as well as the California Endangered Species Act) will be using alleged threats to the American pika from climate change to regulate or completely block projects throughout the Golden State and indeed the entire west.

What the CPSIA, the ESA and CWA all have in common is that the disastrous economic costs they are operating to exact from the private sector were not intended by the men and women who drafted them and were not foreseen by those who legislators who voted for them. Client after client arrives in our offices in various states of disbelief that Congress could have possibly intended the federal laws to operate in such destructive fashion.

The answer is always the same: Congress did not so intend, but activists, enthusiasts within bureaucracies, and the federal courts have all combined to take seemingly sensible efforts at apparently practical, small-step legislation and turn them all into regulatory behemoths with vast power to cripple or completely destroy private enterprise.

This week the Congress will be taking up 1,990 pages of unintended consequences. Nancy Pelosi’s version of Obamacare is worse by far than Harry Reid’s version of Obamacare, but they are both vast skyscrapers of ambiguity and imprecision. If either of them passes, activists, enthusiasts within bureaucracies and federal courts will take whatever emerges from the Congress and roll it forward into the very same sort of iron control from centralized authority as now flows out of CPSIA, ESA and CWA. It is crazy to expect any different result.

A couple of weeks ago I called attention to the FDA’s new war on cereal boxes. The FDA’s sudden declaration of the authority to regulate commercial speech of this sort has gone almost unremarked upon, and the industry did not itself attempt to resist it, quickly abandoning the “Smart Choice” campaign that had caused the FDA’s eyebrows to rise. That which is rewarded gets repeated, so expect more demands about advertising from the FDA and various states’ attorneys general. Expect plaintiffs’ lawyers to start filing their own cases against food producers. Expect the same sequence of law, regulation and lawsuit to play out again and again.

That’s why Obamacare should concern you. It isn’t just the obvious flaws in the plan, from the massive cuts to Medicare and the doctor-decimating impacts embedded in the plan, that will cripple the American economy’s recovery and future robust growth.

It is the years and years of unknown and unintended consequences that follow from the delegation of imprecise authority to government regulators who will be urged on by activists and who will turn to the federal courts to impose their will on the private sector.

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