State Power Can Hold Corporate Monopolies Accountable
By: Cassandra Anderson
Corporate monopolies can only exist through government intervention. Government ‘assistance’ can include corporate welfare subsidies, tax breaks, insider contract deals that eliminate competition, crooked kangaroo court rulings and government regulations.
An example of government regulations that exclude competition are contracts that have very narrow requirements so only the favored corporations fit the criteria. Another trick that is used to prop up corporate monopolies is the federal permitting process that may absolve corporations from accountability.
Commerce Clause
The commerce clause is the most common excuse that the federal government uses to foist unsafe or unnecessary regulations on the States and the People.
Simply put, the commerce clause was created to keep trade flowing and to prevent tariffs on trade between the states. Over time, the federal government usurped power from the states and and now controls commerce, which means that they have control over everything that may cross state lines.
You can view a full constitutional explanation from Judge Napolitano about how the commerce clause has been distorted.
An example of this is chemical herbicide and pesticide manufacturers claiming that states may not ban their dangerous products because it could place undue burdens on commerce — and their profits. However, the court case National Agriculture Chemicals Association v. Rominger established that states may impose stricter constraints on pesticides than the EPA, despite EPA approval and labeling.
Additionally, states may require the manufacturer to compensate for all injuries resulting from use of a pesticide, without any barriers from federal law. And states are entitled to hold manufacturers liable for injuries that could have been prevented by a more adequate label (See paragraph 54).
George W. Bush tried to subvert States’ power for protective and strict consumer laws when he gave corporations immunity from responsibility by way of pre-emption. The goal of pre-emptive federal laws was to grant immunity that superseded state laws. The federal immunity strategy was an end run around Congress because they refused to approve pre-emption.
Bush’s strategy used pre-emptive language in federal oversight agencies’ rules. EPA and FDA approval, for example, removed liability (responsibility) from the chemical and drug makers.
By 2005, seven federal agencies wrote 60 rules with preemptive preambles.
Bush’s pre-emptive strategy worked against consumers who were hurt by dangerous products like pesticides/herbicides and pharmaceutical drugs in product liability cases, and left consumers with zero recourse within the courts.
But Bush’s alarming plot was overturned in 2 Supreme Court cases explained below.
EPA Immunity Case: Bates vs Dow AgroScience
Bush promoted the policy that if a chemical product had been granted EPA approval, it had a federal shield from being sued, even if the product did not work as advertised. This pre-emptive theory was knocked down in the 2005 case against Dow.
The case involved Texas peanut farmers whose crops were killed by Dow’s ‘Strongarm’ weed killer because Strongarm had a different reaction in alkaline soil, but Dow failed to warn of this in the label. The argument was that if the EPA approved an herbicide, then the manufacturer was immune, despite any existing state laws that were more strict.
Justice Stevens noted that the EPA neglects to test products for effectiveness and merely relies on manufacturer data. Plaintiffs must still prove that the product is defective or made inadequately.
Interestingly, Justice Scalia (who pretends to be a states’ rights conservative) dissented on the ruling saying that the scales were now tipped in favor of the states and against the federal government.
FDA Immunity Case: Wyeth v Levine
Diana Levine was a professional guitarist who was injected with the drug Phenergen manufactured by Wyeth for a migraine headache. Levine had to have her right arm amputated because the drug had reached her arteries due to the method of injection. Wyeth failed to instruct that the injection method used increased the risk of contact with arteries even though they were aware of this fact.
According to the American Association of Justice, pre-emptive preambles for new regulations were implemented under the radar by Bush. But in the case Wyeth vs. Levine, the Supreme Court case rejected pre-emptive immunity because Congress had not given that authority to the FDA.
Drug maker Wyeth used the pre-emptive defense claiming that FDA regulations for the drug wiped out any state injury law for ‘failure to warn’ of potential danger of injury. Wyeth argued that the Bush administration declared that ‘failure to warn’ claims would violate the FDA’s authority as a regulator.
Justice Thomas said that such a sweeping approach to pre-emption leads to unconstitutional invalidation of state laws.
‘We Can’t Wait’
Obama is circumventing Congress and handing unprecedented power over to rogue executive agencies.
Executive federal agencies have zero accountability. Obama recently ramped up his “We Can’t Wait” campaign to bypass Congress and expand authority of the alphabet agencies.
Obama said, “We can’t wait for Congress to do its job. So where they won’t act, I will. We’re going to look every single day to figure out what we can do without Congress.” Our government was designed to represent the People with elected officials and a balance of power.
Obama is pushing speedier regulatory reviews by the USDA to benefit GMO producers like Monsanto and Dow.
Conclusion
Under the Tenth Amendment States’ Rights, states can do anything they want as long as it is not a power that is:
• Delegated to the federal government in the Constitution
• Prohibited to the states by the Constitution
• Prohibited to the state by its own constitution
And the Supreme Court has upheld that states may impose consumer protection laws that are more strict than approval granted by the EPA. The Supreme Court also ruled that state consumer protection laws may not be pre-empted by FDA approval of a drug.
Furthermore, States can also require pesticide manufacturers to compensate for all damages from their products.
