Wither Federalism

I am totally confused - under what reading of the constitution can this possibly be within Federal powers?  Is there an off-chance that a pool might pick up and move across state lines?

A new federal pool-safety law has cash-strapped Valley homeowners' associations and apartment managers scrambling to finish costly drain modifications so they won't have to close pools this summer.

Some have already locked gates and posted signs; a few are mulling permanent closure to avoid renovation costs or stiff penalties and legal liabilities if they fail to comply.

The Virginia Graeme Baker Pool and Spa Safety Act went into effect in December and requires that all outlet fittings and drain systems in public and semi-public pools meet new safety standards that prevent drain suction from holding swimmers under water. Backyard pools at single-family residences are exempt.

Certainly the old design can be dangerous -- we updated our drains when we re-did our pool.   But a federal law?

One might expect that the underlying problem was so grave that it necessitated the shortcut of federal regulation over state and local regulation (which normally covers things like pool construction standards).  But in fact the article says that, according to the law's promoters, less than 2 people per year have been killed by this problem, and presumably most of these have been in private pools not covered by the law (since their numbers statistically dwarf those of public pools).

So why has expensive extra-Constitutional federal legislation been passed to save less than one person per year?  Well, because that one person was once related to a famous politician:

The law was named after the 7-year-old granddaughter of former Secretary of State James A. Baker III who died in 2002 in a spa after the powerful suction of a drain held her underwater.

I have written before how politicians' personal experiences often lead to bad regulation.


  1. James:

    This isn't a valid exercise of the Federal Commerce Power. No way this gets upheld, under that power anyway.

  2. Another guy named Dan:

    James, I disagree with your reasoning.

    The pool drain is part of the recirculation/filtration system. this system is made up of multiple components, each of which is or could be a good involved wth interstate commerce. Thus according to precedent, the government is within its rights to regulate their use.

    I don't think that this is a good idea overall, but I think it is an example of the overreach in the interpretation of the active commerce clause.

  3. Sean:

    Maybe they do it through the Corp of Engineers where if there is puddle in the midddle of your field and it drains into a waterway that is connected to an interstate waterway, they presume authority under interstate commerce clauses.

  4. Chris:

    How about a law to ban naming laws after people?

  5. Zach:

    I figured you were going to say that the reason the law was enacted was because a pool contractor in the bill's sponsor's district had contributed a lot of money to the sponsor's campaign fund and/or was on the brink of bankruptcy.

  6. tribal elder:

    "Maybe they do it through the Corp of Engineers where if there is puddle in the midddle of your field and it drains into a waterway that is connected to an interstate waterway, they presume authority under interstate commerce clauses."

    You forgot the part about the migratory goose's poop.

  7. Dr. T:

    To Another Guy Named Dan:

    Your body is made up of trillions of individual atoms that most certainly came from many different states. Are all of your actions therefore subject to federal control under the Interstate Commerce exception?

    The Interstate Commerce exception (to federalism) is supposed to be concerned only with trade among the states. As others noted, swimming pool drain safety requirements have nothing to do with Interstate Commerce. The inground pools aren't crossing state lines, and states aren't erecting trade barriers to the pools from other states. The new law exists for two reasons: as a sop to a federal politician and as a test to see just how far Congress can stretch the Interstate Commerce exception. Since the Supreme Court has used severely twisted "logic" to uphold about 98% of Congress's stretchings, even this absurd law may be upheld.

  8. Brandon Berg:

    If a kid drowns, that's going to sharply curtail his ability to engage in future interstate commerce, and therefore—nah, we all know it's allowed under the "The Federal Government can do anything of which five members of the Supreme Court personally approve" clause.

  9. James:

    @Another guy named Dan,

    Your logic is flawed. By your reasoning, Congress could mandate that homes everywhere must adopt a new type of space heater because that space heater contains parts that are related to interstate commerce. You're putting the cart before the horse.

    @Brandon Berg
    I know you're half joking, but the "future affect on commerce" argument has been forsaken in both Lopez and Morrison, so that's out. The "personal opinion of five justices" rule is still more or less in force...