3 ms·

It sounds like this would actually be good to decide now if the court were truly a "conservative" court - there is no legitimate reason for preemption to apply

It sounds like this would actually be good to decide now if the court were truly a "conservative" court - there is no legitimate reason for preemption to apply to labeling laws (even as broken as California's labeling law is), as labeling a product a certain way is not a mutually-exclusive action. But I expect the rank hypocrisy will win out, especially with the "culture war" backdrop of California delenda est.

AnthonyMouse 6mo ago
> there is no legitimate reason for preemption to apply to labeling laws (even as broken as California's labeling law is), as labeling a product a certain way is not a mutually-exclusive action. That's not really what preemption is about. A major point of having "interstate commerce" -- actual products crossing state lines -- at the federal level, is to prevent states from enacting trade barriers. Suppose California disproportionately has more organic food producers and other states make higher proportions of food products grown with glyphosate. California then passes a law requiring the latter (i.e. disproportionately out-of-state) products to carry a scary warning label based on inconclusive evidence. Are they trying to enact a trade barrier? It sure looks like one. Meanwhile if the stuff is actually dangerous then it's dangerous in all 50 states, so the warning label should either be everywhere or nowhere according to the evidence, right? Relatedly, having dozens or (at the city level) hundreds of different sets of rules is also a kind of trade barrier. Some small business in Ohio is willing to ship nationwide but every state has different rules, they might be inclined to cut off everyone who isn't in the local area since that's where they get most of their current sales, but that's bad. So then there is a legitimate interest in being able to say the rules have to be uniform if the states start trying to micromanage too much. The better way to do this would be to only apply the interstate commerce rules to actual interstate commerce. So they could preempt California from requiring labeling on products shipped from Ohio, or require specific federal labeling on the things that are, but only California gets to decide about the things that never leave California. A lot of states would then say you have to follow the federal interstate rules even if you don't cross state lines, but it would be their decision and some might not.
- tptacek 6mo ago
  More importantly in this case, a commitment to federal preemption allowed Congress to come to an agreement on a more ambitious set of federal regulations than would have been obtainable without it.
- vkou 6mo ago
  > Meanwhile if the stuff is actually dangerous then it's dangerous in all 50 states, so the warning label should either be everywhere or nowhere according to the evidence, right? Only if other states or the federal government give that much of a shit about food safety, which is not a guarantee, both in theory and in practice. They might, for instance, care more about agri-profits than California does. > So they could preempt California from requiring labeling on products shipped from Ohio, or require specific federal labeling on the things that are, but only California gets to decide about the things that never leave California. That's just a regulatory-arbitrage race to the bottom. You'd just have out-of-state producers that don't have to follow any of your laws out-competing local ones.
  - tptacek 6mo ago
    It's the opposite of a race to the bottom. The federal government sets a single standard for the country. The same logic you're advocating is also the conservative argument for health care regulation --- that is, allow the states to preempt the federal standards so they can offer cheaper insurance by lowering standards.
    - vkou 6mo ago
      That's exactly how it currently works, though. Different states can and do set different healthcare standards, above some minimum floor. I'm not sure why you think there's a problem with that. (I mean, I think it's a problem for the residents of a lot of states, but that's their problem, that they have agency to fix, not mine.) If the Midwest likes using paint chips as food coloring, that's not my problem. And it should still not be my problem if they elect some brain-worm addled moron to a federal office who goes and raises the federally permitted amount of paint in my food.

AnthonyMouse 6mo ago

> there is no legitimate reason for preemption to apply to labeling laws (even as broken as California's labeling law is), as labeling a product a certain way is not a mutually-exclusive action. That's not really what preemption is about. A major point of having "interstate commerce" -- actual products crossing state lines -- at the federal level, is to prevent states from enacting trade barriers. Suppose California disproportionately has more organic food producers and other states make higher proportions of food products grown with glyphosate. California then passes a law requiring the latter (i.e. disproportionately out-of-state) products to carry a scary warning label based on inconclusive evidence. Are they trying to enact a trade barrier? It sure looks like one. Meanwhile if the stuff is actually dangerous then it's dangerous in all 50 states, so the warning label should either be everywhere or nowhere according to the evidence, right? Relatedly, having dozens or (at the city level) hundreds of different sets of rules is also a kind of trade barrier. Some small business in Ohio is willing to ship nationwide but every state has different rules, they might be inclined to cut off everyone who isn't in the local area since that's where they get most of their current sales, but that's bad. So then there is a legitimate interest in being able to say the rules have to be uniform if the states start trying to micromanage too much. The better way to do this would be to only apply the interstate commerce rules to actual interstate commerce. So they could preempt California from requiring labeling on products shipped from Ohio, or require specific federal labeling on the things that are, but only California gets to decide about the things that never leave California. A lot of states would then say you have to follow the federal interstate rules even if you don't cross state lines, but it would be their decision and some might not.

tptacek 6mo ago
More importantly in this case, a commitment to federal preemption allowed Congress to come to an agreement on a more ambitious set of federal regulations than would have been obtainable without it.
vkou 6mo ago
> Meanwhile if the stuff is actually dangerous then it's dangerous in all 50 states, so the warning label should either be everywhere or nowhere according to the evidence, right? Only if other states or the federal government give that much of a shit about food safety, which is not a guarantee, both in theory and in practice. They might, for instance, care more about agri-profits than California does. > So they could preempt California from requiring labeling on products shipped from Ohio, or require specific federal labeling on the things that are, but only California gets to decide about the things that never leave California. That's just a regulatory-arbitrage race to the bottom. You'd just have out-of-state producers that don't have to follow any of your laws out-competing local ones.
- tptacek 6mo ago
  It's the opposite of a race to the bottom. The federal government sets a single standard for the country. The same logic you're advocating is also the conservative argument for health care regulation --- that is, allow the states to preempt the federal standards so they can offer cheaper insurance by lowering standards.
  - vkou 6mo ago
    That's exactly how it currently works, though. Different states can and do set different healthcare standards, above some minimum floor. I'm not sure why you think there's a problem with that. (I mean, I think it's a problem for the residents of a lot of states, but that's their problem, that they have agency to fix, not mine.) If the Midwest likes using paint chips as food coloring, that's not my problem. And it should still not be my problem if they elect some brain-worm addled moron to a federal office who goes and raises the federally permitted amount of paint in my food.