Sadly, the BULB Act, H.R. 2417 (see our earlier post here) died in the House the other day. Due to some procedural maneuvering the only way to bring it to the floor for a vote was in such a way as to require a two-thirds majority, and it fell slightly short. (This was in part because the bill greedily included language preventing the states from introducing similar restrictions, which for some states-rights advocates was too much. The Senate version wisely did not include this proviso; such matters of local commerce are rightly a matter for state legislatures, not the federal government.)
But the fight isn’t over yet; conservatives may still be able to get the repeal appended to future legislation that requires only a majority vote.
More here.
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This is not “rightly a matter for state legislatures,” unless the state in question has a tungsten mine and manufactures the bulb within state borders.
While House Republicans may have no shame in being windmill tilting Luddites, this ought to redden their faces:
http://blogs.abcnews.com/thenote/2011/07/democrats-dominate-republicans-in-annual-congressional-baseball-game.html
Of course what can and can’t be sold within a state’s boundaries is by default a matter for state legislatures. I suspect, frankly, that you’d prefer that we abolish the quaint notion of “states” altogether.
Anything which crosses state borders is subject to the Commerce Clause, and is regulated by Congress and not the states.
Peter, your knee is jerking so reflexively here that it appears your brain is completely disengaged.
The bill in question proposed to prevent states from banning the sale of Edison bulbs. In such a case nothing would be crossing the state line. Surely if the notion of states’ rights has any meaning at all, it should mean that the states can regulate what is sold within their borders.
But of course, to one as infatuated as you are with unbounded federal power, that probably makes no difference; after all you’ve already told us that you think the Commerce Clause is “infinitely elastic”. To you, the whole idea of states’ rights is just an irritation; you seem to think that the states have no rights except at Washington’s whim, Tenth Amendment be damned.
Meanwhile, your characterization of Republicans as Luddites is exactly backwards: the Luddites sought to use the power of the government — and failing that, vigilantism — to eliminate particular forms of technology. Conservatives here are doing precisely the opposite: resisting the imposition of such a ban by meddlesome zealots.
I could agree with you, but then we would both be wrong.
First, there is no ban on the sale of incandescent bulbs. There is an energy efficiency standard which is agnostic as to the type of bulb in use. If an incandescent bulb can be designed to meet the standard, it is perfectly OK. It’s like requiring cars to meet pollution standards: you can sell any car you want, as long as it’s not a gasser. So a bill to “prevent states from banning the sale of Edison bulbs” is a non-starter, as there is no ban to begin with. Any incandescent bulb still on the shelves can be sold, but all new bulbs must adhere to an energy efficiency standard.
Second, it is not true that “the states can regulate what is sold within their borders.” If something is sold which has a component which comes from another state, it is properly subject to the Commerce Clause. That’s not a matter of opinion — it’s in Article 1 Section 8 and the Interstate Commerce Act. If you think this represents “unbounded federal power,” then take it up with the Founders.
The notion that the Commerce Clause is “infinitely elastic” regards Wickard v. Filburn, where wheat grown and sold in California was found to be properly subject to the Commerce Clause, because it has an effect on wheat pricing in the other states. You may or may not like this ruling, but it is settled law. In any event, it is irrelevant to a situation where a light bulb factory in Texas uses Tungsten which comes from Louisiana, which is clearly within the authority of Congress to regulate.
You are both splitting hairs and persisting in error.
First, if I mandate that cars must get a million miles to the gallon in order legally to be sold, that constitutes a de facto ban. Everyone knows that the effect (and the intent) of the new standard is, in any practical or realistic sense, to impose a ban on the sale of incandescent bulbs. The parameters of the standard fall precisely in the range that excludes Edison bulbs while allowing CFLs.
Second, you still don’t seem to understand the distinction between selling something and NOT selling something. The language in the proposed House bill would have prevented states from blocking the sale of incandescent bulbs. I’m sure that in your fetish for unlimited federal power, and infatuation with the Commerce Clause as the wrecking-ball of states’ rights, it’s fine with you if Washington compels states to allow trafficking in particular items of merchandise at the whim of Congress, but that is hardly settled law, the obscene Wickard ruling notwithstanding.
To reach for the Interstate Commerce Act of 1887, intended to regulate rail fees, as a weapon for bludgeoning the states as regards light-bulb sales shows just how far you are willing to go in your ideological overreach.
Well, no. The example of requiring cars to get one million miles per gallon is a reductio ad absurdum argument which is inapt. The relevant analogy would be requiring cars to get ten miles per gallon, where there are many cars available which meet that standard and some which do not. The first example bans the sale of all cars. The second example uses an objective standard to ban the sale of only some cars.
While “the proposed House bill would have prevented states from blocking the sale of incandescent bulbs,” the bill is a non-starter because neither any individual statee, nor the federal government, block the sale of incandescent bulbs. The only conceivable way in which the bill would have any effect is if a light bulb is sourced, manufactured, and sold entirely within a single state; otherwise it is properly within the authority of the federal government. Since we don’t produce tungsten in America, the bill is a useless waste of time designed to appease the government-is-always-bad crowd. One would think that House Republicans have better things to do with their time, like trying to ruin America’s credit rating.
The relevance of the Interstate Commerce Act is that it established the Interstate Commerce Commission, as well as the framework for federal regulation. The law was written at a time when interstate commerce was expanding beyond agriculture and commodities. The fact that it originally concerned railroads is irrelevant. It is the basis for regulating the many industries and products which have developed since then.
Under its power under the Constitution, the federal government may prohibit the sale of unsafe drugs, food, toys, cars, and all sorts of other things, regardless of what an individual state may prefer. It may also require that goods sold meet certain standards, whether it is for safety, pollution, or energy efficiency. By the same token, a state may not disallow legal products which are made in another state, which I believe to be the original intent of the Clause (so individual states would not engage in mercantilist trade policies with other states). There are some exceptions (e.g., the sale of liquor) but they are few.
While you may consider Wickard to be “obscene,” nonetheless it is settled law. Its holding would certainly subsume the much more modest use of Congressional authority regarding the sale of light bulbs.
You seem to be unable to distinguish between the way things are and the way you may wish them to be. While you posit a “fetish for unlimited federal power” on my part, nothing I have written is a matter of opinion. These are inarguable facts. There is, in fact, a Commerce Clause, which enables the federal government to regulate interstate commerce. Light bulbs cross state lines, ergo they are subject to federal regulation. It’s that simple.
Again: you are completely missing the point here. If a state wants to set a local standard that has the effect of restricting the sale of certain products (as oppposed to permitting the sale of products prohibited at the Federal level, as in your remark above) — for example if it wanted to disallow the sale of foods exceeding some levels of sugar or fats, or if it wanted to ban the sale of cigarettes — there is no reasonable interpretation of the enumerated powers granted the Federal government by the Constitution that should prevent it from doing so.
THAT is why the House bill overreached.
You wrote:
But all that I am defending here in saying the House bill overreached is to say that the States, too, have the right to “require that goods sold meet certain standards, whether it is for safety, pollution, or energy efficiency.”
In your zeal to arrogate power to Washington at the expense of the States, it seems you would deny them even that.
This is beyond my knowledge of constitutional law, but I don’t think that statement is correct. See Gibbons v. Ogden. The idea is that states cannot inconsistently regulate products which are national in nature.
Nonsense. Look, for example, at Nanny Bloomberg’s regulation of fatty foods. If there were a valid Constitutional challenge to be made, you can be sure it would have.
You also wrote:
Hardly inapt. The new standard effectively, and intentionally, kills off one category of manufactured goods — incandescent light bulbs — in favor of another. Your point might be intellectually defensible if there were no other relevant distinction between CFLs and Edison bulbs, but that is hardly the case. When a light source becomes available that has the advantages of CFLs without the many drawbacks, you can be sure that it will be eagerly embraced by consumers in the free market. CFLs have not, because in general people don’t like them. So our bullying Federal government, knowing better as always what’s good for us, just rams them down our throats.
It is inapt. The energy regulation uses an objective standard which one class of products does not meet. If there are other types of light bulbs which do not meet the standard, they would be excluded as well.
The relevant analogy would be a standard of ten miles per gallon, and someone wants to register a Sherman tank which gets one mile to the gallon.
These examples do not forbid incandescent light bulbs or Sherman tanks per se, but rather ban all like products that fail to meet a minimum standard.
Mandating that tanks get 100 miles to the gallon would be a de facto ban on tanks. (You might as well insist that they get 1,000,000 miles to the gallon.) Likewise, the energy standards here were specifically chosen to be an effective ban on incandescent bulbs, and it is disingenuous to pretend otherwise.
In your view, what powers should the States retain, if any at all? Dog-license fees?
Is the Tenth Amendment just meaningless froth?
States have lots of rights. Their legislatures define crimes and penalties for those crimes. They determine tax and spending policy. They license businesses, pass zoning laws, maintain schools, set speed limits, regulate the sale of real estate, and do lots of other things.
While you may prefer the type of government we had under the Articles of Confederation, that’s not what we’ve got. When there is a conflict between states’ rights and the federal government’s enumerated powers, the federal government takes precedence. Interstate commerce clearly falls within the rubric of enumerated powers, rendering my view irrelevant. This is a matter of fact, not debate.
And that is what is at issue here: the power of a State to define what cannot legally be sold within its borders (i.e., therby defining a crime).
The point here is not whether the regulation of some aspects of “interstate commerce” falls within the federal government’s enumerated powers, but how broadly to interpret that mandate. On a zealously inclusive interpretation, there is no effective limit whatsoever to the Federal government’s interference with any and all aspects of economic activity — a view that you have explicitly endorsed.
So, just to be clear: you don’t think that the individual States should rightly reserve the power to set their own standards for energy efficiency in products available for sale within their borders? (That’s where the House bill, in my view, overreached.) Really?
What about California’s extra-stringent vehicle-emissions laws?
You are correct in writing that the States also have the right to “require that goods sold meet certain standards, whether it is for safety, pollution, or energy efficiency.”
However, these standards cannot contravene federal standards: they must either meet or exceed them. For example, California has more stringent car emission standards than is the case with the other 49 states. However, California cannot adopt a standard which is less stringent than what is allowed nationally. If federal regulation requires that over the counter drugs meet certain standards, states can’t sell substandard drugs. And so forth.
Well, then you must agree that the House bill, as written, overreached, which was my point all along. It said explicitly that a State could not define a standard that was more stringent than the Federal code.
Is this a trick question? The state would define a standard which is less stringent than the federal one, because the minimum level of energy efficiency would be less than what is required nationally.
Re your other question: there are some examples at the margin where states have some flexibility to adopt different standards. Pornography is one example: the Court has used “community standards” to say that one state may ban material which another state would allow. I guess you would call this a wankers’ rights issue. There are also differences in gun laws, tobacco sale to minors, and things like that. However, there are no exceptions to the Commerce Clause in the Constitution, so it is more or less absolute.
No, of course not. Have you been paying attention? The bill would have specified that not only would the stringent (Edison-bulb excluding) energy-efficiency requirements be repealed at the federal level, but also that similarly stringent requirements could not be enacted by any state. In effect it said: “Congress isn’t going to set minimum standards for light-bulb efficiency, and the States can’t either.”
It’s a terrible addendum to the simple Senate bill. On a states-rights view the state should have the power to enact such stringent light-bulb-efficiency requirements for bulbs sold within its borders, even if the Feds repeal theirs. And that’s why I said this was “rightly a matter for state legislatures, not the federal government.”
Of course if my state were to try to enact such a bill, I’d vigorously oppose it here, too. But that’s the way the system is supposed to work.
Oh, I see. I read your original post to mean that determining efficiency standards for light bulbs — less than the federal government, greater than the federal government, or no standard at all — was what was “rightly a matter for state legislatures,” which is why you were “sad” that it did not pass. (Reads like a Zagat review.)
So we are agreed. Any state which would like to pass more stringent regulations than the 50-state standard is welcome to do so.
We could have saved a lot of ink here, you knucklehead.
Well, if you were clearer in your writing, I could have got some work done this morning.
Yeah — I was reading the time stamps for these comments and wondering whether either of you had a job. Was this exchange taking place during some long, French-style lunch break?
I was at home today…
What part of “the bill greedily included language preventing the states from introducing similar restrictions” Peter thought wasn’t clear, I dunno.
Blaming others for lack of clarity is the standard ploy of a pathological naysayer.