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When Congress Screws Up: ESA, CPSIA and Obamacare

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Lawyers spend a lot of their time dealing with the aftermath of people’s carelessness. Almost every single catastrophic injury victim I have ever advised or represented has been put in his or her condition because of the negligence of others, usually individuals.

That same level of negligence can and often does appear not from individuals but from companies and, of course, from legislatures, especially the U.S. Congress. For the past 20 years I have spent at least half of my lawyering on the consequences to private property owners and home builders of the incredibly poorly written federal Endangered Species Act (“ESA”). Hardly a week goes by when another ESA-driven fiasco explodes, the most recent being the Delta smelt-driven drought in California’s central valley. In all of these years the Congress has not undertaken a single serious revision to the law despite the thousands of horror stories triggered by the law.

For the past year I have been drawn into the devastation brought about by the Consumer Products Safety Improvement Act (“CPSIA”) by my friend and products liability specialist Gary Wolensky and a parade of hard-working victims of this law, passed in late 2008. (Just this past week the agency charged with applying the act destroyed a large part of the children’s apparel market in a stroke.) It is difficult to communicate to laymen and even MSMers just how vast the damages are that have been brought about by CPSIA, but in an interview Friday with Rick Woldenberg the president of Learning Resources, I tried to work with Rick to present a primer on the CPSIA’s effects on the manufacturing sector that makes things for children. To get a glimpse of the law’s reach, keep an eye open for the number of kids who cross your field of vision today. Everything they are wearing, everything they are playing with, everything they are reading or touching is now regulated by the CPSIA’s draconian requirements. The costs of this law are staggering, and they were not intended by Congress.

Yet Congress won’t move a muscle to fix this mess. Rick and I speculated about the reasons for this lethargy on the Hill —the transcript of our conversation is here, and the podcast is here— but even as the costs mount and the job losses continue to accelerate, Nancy Pelosi and Harry Reid do nothing. It doesn’t matter how great the pain they have unintentionally inflicted. They just don’t care, or the political costs of admitting error are too high. Or both.

When an individual suffers an injury at the hands of another person or a business, an e-mail arrives or the phone rings in a lawyer’s office and the process of repairing that injury as best the law is able to do so begins. There’s a lot of unnecessary and costly litigation out there, but there is also an enormous number of necessary cases aimed at redressing wrongs.

When Congress screws up –with the ESA, with CPSIA, and almost certainly on a never-before-seen scale with Obamacare– there is no where to go except back to the lawmakers who broke the china to begin with.

Which is why Congress needs to be told to slow down and then stop their rush to radically rework American medicine. Most badly written laws only cost people money, though it is often an enormous amount of hard-earned and difficult-to-replace money.

The mistakes in this new, hastily written law covering the vast territory of American healthcare will cost lives. And even when that becomes obvious, as the terrible and unintended side effects of ESA and CPSIA have become obvious, still Congress won’t act to repair the damage. It never does.

Sign the petition to stop the Congress in its rush to tamper with American medicine.

Then call and e-mail the “Blue Dog Democrats” in the House and demand they stand up against the single-payer caucus in their party. If Obamacare passes the House it will be because these so-called moderate Democrats allow themselves to be pressured into a radical overhaul of American medicine that the voters in their districts don’t want and which the country cannot afford.


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