A showdown could be brewing in Sacramento.
Don Burns, the leading lobbyist for California’s pool and spa industry, wants to know whether the state or its attorney general is authorized to enforce the Virginia Graeme Baker Pool and Spa Safety Act.
“There’s nothing in the statutes that comes close to the assertion that the state attorney general can take it upon himself to enforce federal law,” said Burns, president/CEO of the California Spa and Pool Industry Education Council, or SPEC. “There are just some general principles of law — the state cannot enforce federal law without being given legislative authority. Major states [such as California] just don’t function that way.”
Ultimately, it’s a question that cuts to the heart of VGB — whether states can be compelled to act as enforcers for federal agencies. The U.S. Consumer Product Safety Commission is charged with providing enforcement guidelines of the law. Enforcement itself, however, primarily falls to the various state public health departments.
But many states, including California, may not be ready, willing or able to begin enforcing provisions of VGB.
Officials at the CPSC did not immediately return calls for comment. But a statement released by the agency on Dec. 15, 2008, reads: “Pool and spa operators are encouraged to continue working as diligently as possible to come into compliance, as the agency and state Attorneys General are empowered to close down any pool or spa that fails to meet the Act’s requirements.”
Not so fast, according to Burns.
“We went through the statutes to determine what, exactly, the power of the attorney general is,” he said. “And enforcing federal law through the health and safety code is not one of them. I don’t know that the attorney general in California has any latent or undiscovered powers that aren’t given to him by the legislature.”
There may be legal precedent as well. In 1997, the U.S. Supreme Court ruled in Printz v. United States (521, U.S. 898) that the federal government (in this case, Congress) could not command local officials to carry out federal law.
The case was brought by a pair of sheriffs in Montana and Arizona in response to the Brady Handgun Violence Prevention Act. The law, adopted in 1993, established a national instant background check system that would prevent firearms sales to certain individuals, including fugitives and convicted felons.
But the law also called for interim provisions until the federal background system could be put in place. One such provision required dealers to notify local law enforcement of anyone who wished to purchase a handgun.
Local officers then were expected to “make a reasonable effort to ascertain within five business days whether receipt or possession would be in violation of the law.”
The plaintiffs — Ravalli County (Mont.) Sheriff Jay Printz and Sheriff Richard Mack, of Graham County, Ariz. — challenged the legality of the Brady Act’s interim provisions.
In its ruling, the Supreme Court said the federal government was more or less attempting to “draft” police officers from all 50 states into its service for the purpose of enforcing federal law. This, the court decided, would give the feds powers that far exceeded those outlined in the Constitution. It deemed the interim provisions unconstitutional.
The immediate impact of the ruling was minimal. Most local and state officials went ahead and conducted the background checks anyway. And the issue became all but moot once the federal background check database was established.
But the case could impact how states respond to provisions of the VGB Act, according to one constitutional law expert.
“It sounds like a federalism issue. The Congress cannot command state or local officials to enforce federal programs,” said David Cruz, professor of constitutional law at USC Gould School of Law. “That is not a power that Congress has. They cannot commandeer state or local offices.”
Congress is, however, permitted to induce state or local agents to enforce federal law through financial or other incentives, Cruz noted. And state executive officers can choose to enforce federal law voluntarily.
But a federal mandate? That begs another question: Who, then, is liable if another tragedy, such as the one the VGB Act was intended to prevent, were to occur? The federal agency that drafted it? Those responsible for implementation? Or the state and local authorities charged with enforcement?
Regardless, SPEC’s Burns plans to request a formal legal opinion from the California legislature clarifying “whether the state can act on behalf of Congress without express legislative authority.”
“Absent that, they can’t go out and decide which federal law they want to enforce,” he added. “They can’t just go out and act like posses.”