CPSIA is a legislative action with benefits and costs. You and Mr. Olson have documented well the high costs of the law, but you ignore the benefit side. The American people were outraged by lead-tainted Chinese toys. They know with some certainty that lead is as hazardous as Plutonium. The Congress saw a public heath risk of lead and acted accordingly. There is the problem. The congress said that the possible lead in some ink in some books is going to poison children. That is what CPSIA says. That is ridiculous, but there is no constitution requirement that Congress or the courts have intelligence.

We can show that CPSIA is distinctly harmful, too. (One word that I really think we need to get out is that when you hurt business, you hurt children. Businesses are frequently run by parents and grandparents, and businesses emply parents and grandparents. When businesses are crushed beneath a load of regulation, children feel the weight of it.)

Even the folks who pushed for this are asking themselves and their senators and the CPSC why they don’t just get on the ball and exempt whatever isn’t a hazard to human health. (This is on the record in their letters.) Unfortunately, unbeknownst to most of them, that’s not the standard they were lobbying for last year.

My position is that the correct argument against CPSIA is that there is no real benefit from it. The belief that incidental lead is a hazard is unfounded, as was the fear of silicone breast implants and power lines.

To see my point, suppose an earthquake. The authorities would have a duty to close libraries that had structural damage, even if they were safe when built.

The best way we citizens can fight CPSIA is to ensure more and more citizens / parents understand the impact of CPSIA on their everyday lives (all the way down to undermining our authority, turning it over to a growing Big Brother) and work to get the will of We the people to eventually be heard by our public servants.

I believe that it would take a cold soul to claim substantial government interest in suppressing many pre-1985 books for children, or at least children aged 3-12.

The real effect of CPSIA is the suppression of masses of literary content; the result will almost certainly be a disproportionate loss of traditional conservative content. These things are not irrelevant to the First Amendment. (Interpretations are indispensable, but at the end of the road, the First Amendment will retain a distinct, concrete meaning.)

Would the First Amendment not apply to any of the following content-neutral legislation?
1. All newspapers must post a $1,000,000 bond before first publication.
2. No library can be open to the public unless a director with a doctorate in library science is present at all times.
3. No one may read books of any kind.
4. Reporters may not own cars or use public transportation.
5. CPSIA, which is about as far-fetched.

The only argument I can see that is remotely plausible would maybe be a Takings Clause argument. But that is even a really tough road to hoe (although admittedly it’s not an area of law where I have any experience), and the only area of the law to which it would apply is the failure to exempt existing inventory. It wouldn’t have any impact on the testing, labeling, or certification issues.