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Tags Legal System

01/14/1999Gary Galles

Early last year, President Clinton, arguing that "it will save hundreds of lives each year," came out with a noble-sounding proposal on drunk-driving laws.

He said that come October 2001, any state with a blood-alcohol standard higher than 0.08% should be subject to losing 5% of its federal highway funds, a penalty he said should increase later.

The president is once again pushing that proposal to withhold federal highway aid to states that fail to adopt the new, stricter national standard, which passed the Senate, 63-32, but died in the House last year.

One might or might not accept the argument that this change would be a good idea, saving some of the thousands of alcohol-related traffic deaths each year in the 34 states that allow higher blood-alcohol content.

One might or might not be impressed by the facts that such accidents are at their lowest level since federal records began; that almost three-fourths of alcohol-related automobile deaths involved drivers with blood-alcohol content of more than 0.12%; and that eight of 10 states with the lowest level of drunk-driving fatalities have a 0.10% blood-alcohol standard.

But what is more important is how this proposal illustrates a major way the federal government has increasingly circumvented the federalism designed by the Constitution.

Threatening to hold back funds a state would otherwise get allows the federal government to dictate state policy, buying states' compliance with their own citizens' tax dollars.

Highway funds have long been used for this purpose. This was how the national 55-mph speed limit was imposed on recalcitrant states, not to mention state "smoke a joint, lose your license" laws and an almost limitless list of causes in between.

If a state fails to "voluntarily" adopt a law desired by the federal government, the feds simply withhold gas tax or other funds -- such as airport trust funds, which were used in 1997 to force Los Angeles into a change in its airport policies -- that would otherwise have gone to the state. Or, to put it more accurately, the feds withhold funds that otherwise would have been returned to the state from which the taxes originated.

The result is effective federal control of local government policies, which is sharply at odds with the design of our Constitution, most notably the 10th Amendment.

Further, it is a result the delegates to the Constitutional Convention could not have anticipated, because the federal government they created would never have had sufficient taxing power to bribe states into doing its will.

Our Constitution's framers designed a carefully limited federal government, in which, as James Madison made clear in number 45 of the Federalist Papers: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite . . . (including) all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the state."

The framers also knew that the Constitution's limitations on federal power -- mere words on paper -- would not be self-enforcing.

That is why they reinforced them with a system of checks and balances by, in Madison's words from Federalist 51, "so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

Then each of these parts, including state governments, was given "the necessary constitutional means and personal motives to resist encroachments of the others."

As a result of this federal design, Alexander Hamilton argued in Federalist 17 that state governments "will . . . be able effectually to oppose all encroachments of the national government."

Today, however, America is very far from that situation. We now have every level of government micromanaged from Washington, because no government body is beyond the tentacles of federal funds that can be held back.

Sometimes, many of us may like the results of that micro-management. But we should know how much of our constitutional federalism has been lost in the process.

The resistance of state and local governments, jealous to maintain their powers, against federal overreaching of its constitutional authority has been thoroughly undermined.

Instead of successfully resisting federal abuses of their power, they now cooperate in them, for fear of losing funds.

Ultimately, the question here is which is more important: Adhering to the Constitution, or our politicians' scramble for every penny and every ounce of power that can be extracted from participating in its erosion?

Those trying to nationalize drunk-driving policy, as with so much else, have made their answer clear. But do we as citizens really believe that we are better off federalizing our state and local policies?

Do our state and local representatives really believe a few pieces of federal silver are worth further eroding the already extensively undermined constitutional constraints on Washington's power to impose its will on us?

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