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The Nanny State and Baby Cribs

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The federal government is routinely condemned for being cruel, inept, paternalistic, evil, inefficient, and intrusive — except when it comes to the subject of child safety. Indeed, in the name of child safety the most flagrant violations of civil liberties, private property, and the Constitution are routinely accepted by those who might ordinarily have nothing but condemnation for the monstrosity that is our federal government.

The U.S. Consumer Product Safety Commission (CPSC) recently voted unanimously (5-0) to ban the manufacture and sale of traditional “drop side” cribs in the United States. The new federal crib safety standard not only outlaws the “drop side” crib design, it also mandates stronger crib mattresses, sturdier crib hardware, and more rigorous safety testing of cribs. The ban will go into effect in about six months. Yet, according to a spokeswoman for the CPSC, “Retailers and manufacturers have already been phasing out the traditional drop side cribs.”

Established in 1972 under a Republican president by the Consumer Product Safety Act, and strengthened in 2008 under another Republican president by the Consumer Product Safety Improvement Act, the CPSC is an independent federal regulatory agency “charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children.” In fiscal year 2010, the CPSC had a budget of $116,200,000, plus an extra $10 million classified as multiyear funds. The agency has requested funding of $118.6 million for fiscal year 2011. The CPSC is composed of five members appointed by the president, with one of the members serving as the chairman. Underneath, there are over 500 employees.

Now, compared to other federal agencies like the Social Security Administration and the Environmental Protection Agency, the CPSC is not very big. And its yearly budget wouldn’t even fund the wars in Iraq and Afghanistan for one day. But to focus on the size and budget of the CPSC is to miss the point. To draw the conclusion that, even though the CPSC is insignificant in the grand scheme of things, there are hundreds of other federal agencies just like the CPSC, the acronyms of which most Americans would not even recognize, is also to miss the point.

First of all, where in the Constitution does it authorize the federal government to establish the CPSC or get involved in consumer protection? And for that matter, where in the Constitution does it authorize the federal government to establish any regulatory agency or to ban anything? The answer, of course, is nowhere.

One of the gimmicks of the new Republican majority in the House, as found in their “Pledge to America,” is to “require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.” As there is no clause in the Constitution regarding the subject of consumer protection, it will be interesting to see how the Republicans get around this lack of constitutional authorization when they want to pass legislation to protect consumers by imposing or increasing regulation of a product or industry. We know, of course, that, clause or no clause and pledge or no pledge, they will get around it. After all, that’s just what they’ve always done. Every Republican in Congress that voted to establish or strengthen the CPSC swore to uphold the Constitution and still voted that way anyway. So just as previous Republicans in Congress voted to establish and strengthen the CPSC and Republican presidents signed the legislation, we can be sure that current Republicans in Congress will not only not vote to abolish the CPSC, they will pass more legislation in the name of consumer protection.

Although libertarians would oppose the regulation of baby cribs on the state level as well, under our federal system of government, that is where the debate over regulation should take place. The federal government has absolutely no authority to regulate baby cribs or any other product.

And second, the regulation of baby cribs or any other product should be left to the free market. Businesses, industries, retailers, consumers, consumer advocacy groups, trade groups, insurance companies — all have a stake in product safety. The idea that the only thing stopping companies from making products that maim and kill is a government regulatory agency like the CPSC is ludicrous. Manufacturing a defective product — and especially one that resulted in the deaths of children — would be a public relations nightmare for companies that could seriously impact their business and lead to lawsuits.

It is a myth that no organizations in a free market would exist to set safety standards, keep records of defective products, facilitate product recalls, identify hazardous substances, flammable fabrics, and choking risks, make recommendations to improve product safety, compel compliance from manufacturers, regulate the industry, and otherwise protect consumers. Many people perhaps don’t realize that well-known entities like Underwriters Laboratories and their local Better Business Bureau and Chamber of Commerce are private organizations. The number and scope of other organizations that might exist in a truly free market are endless.

Democrats, liberals, progressives, moderates, and, if you look past their libertarian rhetoric at election time, Republicans and conservatives, although they may vehemently disagree on the particulars, all subscribe to some form of paternalism and believe that it is the job of government to regulate business and protect consumers. Libertarians, on the other hand, are different from all varieties of statists because they look to the free market instead of the government.

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