A

A leading lobbyist for California’s aquatics industry is questioning 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 Don Burns, president/CEO of the California Spa and Pool Industry Education Council, or SPEC.

Ultimately, it’s a question that cuts to the heart of the VGB Act: 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. However, enforcement primarily falls to state public health departments. But many states, including California, may not be ready, willing or able to begin enforcing provisions of the VGB Act.

In earlier statements, the CPSC has stated that “state attorneys general are empowered to close down any pool or spa that fails to meet the act’s requirements.”

But Burns may have legal precedent on his side. 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.

“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 the University of Southern California Gould School of Law.

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? 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.”