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Preemption WatchFebruary 3, 2005 Federal PreemptionEducationNo Child Left Behind – Under the federal No Child Left Behind law (Public Law 107-110), school districts that fail to meet federal standards must provide tutoring to their students. But the federal government won’t allow the schools to provide the tutoring themselves. In December 2004, the U.S. Department of Education reaffirmed its requirement that federal funds for tutoring cannot be used to finance in-school efforts; funds must be used to hire private companies. But, as Chicago discovered, private company tutoring can be four times as expensive as in-school tutoring. As a result, the school districts can rely on free federal money, but only if they drastically reduce the number of students who are being tutored. Chicago Public School officials estimate that roughly 23,000 of the 41,000 students now participating in the district’s free, after-school tutoring programs would not receive tutoring if the district used federal money. As a result, as of January 31, 2005, Chicago and Illinois are spending $5 million of their own money to fund in-school tutors. For more information: “Deal with state keeps 40,000 kids in CPS tutoring program,” Chicago Sun-Times, January 31, 2005. “Tutoring program gets low grades,” Chicago Sun-Times, January 17, 2005 AgricultureFarm Service Agency – In January 2005, the U.S. Department of Agriculture put into effect new guidelines for local Farm Service Agency committees. District FSA committees are elected by farmers and ranchers in the district. The new guidelines give national and state FSA offices the authority to redraw district boundaries if they feel elected committees do not reflect the region’s composition. In addition, they instruct the USDA to consider additional election reform efforts, including “further centralization of the election process” and “provisions allowing for the appointment” of voting members to committees. For more information: Uniform Guidelines for Conducting Farm Service Agency County Committee Elections, Federal Register, January 18, 2005 Corn Growers Challenge Bush Administration’s New Rules for FSA Committees, American Corn Growers Association, October 1, 2004 HealthAbortion Rights – Members of Congress added an eleventh-hour provision to the 2005 federal budget bill that prevents state and local governments from requiring hospitals, clinics and physicians to provide women with information about abortion and emergency contraception. Previously, states were allowed to withhold federal Medicaid funds from those who refused to provide such information. Also, states can no longer require that state-certified health care centers provide abortion, abortion referrals, or contraception. Only Catholic hospitals had been offered exemptions from these types of state directives. The “Abortion Non-Discrimination Act” allows all “health care entities” (including hospitals, clinics, HMOs, health insurance plans, and any other kind of health care provider) to refuse to follow state directives regarding contraception or abortion information or services. For more information: Lawsuits Filed to Enjoin Federal Refusal Clause, The Alan Guttmacher Institute New Federal Refusal Clause Denies Women the Freedom to Exercise Their Conscience, Catholics for Free Choice, December 10, 2004 Medical Marijuana – Twelve states have legalized medical marijuana. In Ashcroft v. Raich, the federal government argues that these states are violating the Controlled Substances Act, which lists marijuana as a Schedule I drug with no legitimate uses, and that federal law takes precedent because of the commerce clause (Article I, Section 8). For more information: Transcripts of the oral arguments in Ashcroft v. Raich are available from the U.S. Supreme Court (Argued November 29, 2004). Dahlia Lithwick, “Dude, Where’s My Integrity?” Slate, November 29, 2004. Consumer ProtectionWith the support of 100 percent of Republicans and 59 percent of Democrats, the U.S. Senate passed S.5 on February 10 (click here to see how your senator voted). The House is expected to pass H.R. 516 in the week of February 14. The bill gives federal courts the authority to hear any class action lawsuit in which more than $5 million is at stake and at least one member of the class is from a different state than the defendant. The bill allows federal courts to determine whether or not state consumer protection laws will be applied. It will also take most consumer lawsuits out of state courts, it would mean a significant number of cases could not be brought in either federal or state courts. A 1985 Supreme Court ruling bars courts from certifying class action cases in which there is a difference between state laws. The Senate rejected a proposed amendment to give federal judges the discretion to select which state law to apply. For more information: Class Action Fairness Act of 2005 (S.5) Amanda Griscom Little, "Class Action Dismissed," Grist, February 10, 2005. "Class action suits reclassified," Christian Science Monitor, February 14, 2005. State PreemptionMunicipal UtilitiesBills limiting cities’ ability to provide broadband services are being considered by legislatures in Indiana, Oregon, Nebraska, and Ohio, and are expected in Florida and Ohio. Many not-for-profit, community-owned and -operated already have the capabilities to provide broadband over power lines. Private cable television and telephone service providers are working to prevent competition from municipal utilities by lobbying state legislatures to create barriers to entry. Small communities and rural areas that are not profitable for private companies are particularly hurt by this state preemption of local government activities. For more information: American Public Power Association, Community Broadband Current News The New Rules Project - http://www.newrules.org/ |
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