State legislators call federal preemption a growing problem.

The federal government is extending its ability to usurp state law in a wide array of areas, and this extension is driven by special interests seeking to impose their will on public policy. That's the feeling among state government leaders, according to the National Conference of State Legislatures (NCSL), a nonpartisan organization that provides research and advocacy for states, commonwealths, and territories.

At a recent press conference held during its three-day Spring Forum in Washington, D.C., NCSL representatives spoke of state governments' frustration with federal preemption.

"Unwarranted power grabs by the federal government subvert the federal system, choke off innovation, and ignore diversity among states," said Georgia Sen. Don Balfour, chair of the NCSL's standing committees.

In the introduction to its most recent edition of the Preemption Monitor, a report published by the NCSL's Law and Criminal Justice Committee, the NCSL said, "Pressure is mounting for Congress and the White House to support federal usurpation of state authority in a variety of areas such as immigration reform, criminal law, tort reform, driver's license security, and the environment." The Monitor tracks 72 bills that have put state laws under greater federal consideration or control.

"That number [72] represents a 35 percent increase just since January," said Balfour.

David Balboni, a New York state senator who serves on the NCSL's executive committee, compared preemption to the imposition of unfunded mandates. "It's more abstract, but it's just as egregious," Balboni said.

Of particular concern, he said, is federal regulatory preemption, which allows "faceless bureaucrats--unelected and, frankly, unaccountable--to wipe out 50 states' laws with the stroke of a pen."

Balboni said this overturning of state regulations is dangerous for consumers, and it imposes extra costs on states to enforce the new regulations. For instance, he pointed to the National Highway Traffic Safety Administration's recent ruling on roof crush standards. "It preempts all state products liability laws and will negate state tort laws designed to protect consumers," he said. "And it will cost states $60 million. So the auto industry gets immunity, and the states get to pay."

Among the bills tracked in the Preemption Monitor:

* H.R. 4698, the "Disaster Relief Volunteer Protection Act of 2006," which preempts so-called Good Samaritan laws by giving nonprofit and government organizations greater immunity, including for "acts or omissions of gross negligence"

* H.R. 4471, the "Responsible Lending Act," which supersedes any state law that attempts to regulate mortgage lending activities

* H.R. 3509, the "Workplace Goods Job Growth and Competitiveness Act of 2005," which limits when and under what conditions a civil action may be filed against the manufacturer of a "durable good" that caused an accident or injury

* CPSC Mattress Flammability Rule, a new set of standards adopted by the Consumer Product Safety Commission, which explicitly preempts "conflicting state laws and common law practice."

"These rules negate state standards that might actually be higher than the federal ones," Balboni said. "They negate our ability to protect our own citizens." He added that NCSL's goal is not to deny all federal authority but to create a "strong state-federal partnership."

NCSL President-Elect Leticia Van de Putte, a Texas senator, said, "The federal system of government was designed so that each state could address the needs of its own people. These blanket solutions to multifaceted problems just don't work."

Balboni said the NCSL has been monitoring this issue for several years and has repeatedly made its concerns known to Congress.

"They get it," he said, "but it is hard to get people excited, because it's gradual. It's like beach erosion. You don't really think about it, and then one day you wake up and say, 'The beach is gone!' It's incremental."

Balboni said the problem is also a constitutional issue, while acknowledging that the subject is rather dry and bureaucratic, akin to "watching paint dry." But, he added, "the cost is very real, and the impact is very real."

The Preemption Monitor is available at www.ncsl.org/print/standcomm/sclaw /060406Preemption.pdf.