A Risk to Federalism

It always starts from the best of intentions.  The Senate is unhappy with the lack of uniformity of driving laws governing teenage drivers across the States, so it wants to impose national standards.  Specifically, the Senate wants to use a two-year, $109 billion highway bill currently under consideration as the, umm, vehicle for imposing national standards for teenager cell phone use while driving and for teenage driver licensing requirements, among others.  The thinking seems to be that the Feds got away with this concerning minimum drinking ages, so they can do it again in this area.

But the Feds didn’t, entirely, get away with it concerning drinking ages.  In South Dakota v. Dole, the case concerning the imposition of a national minimum drinking age, the Supreme Court ruled (not entirely correctly) that

[T]he relatively small financial inducement offered by Congress here – resulting from the State’s loss of only 5% of federal funds otherwise obtainable under certain highway grant programs – is not so coercive as to pass the point at which pressure turns into compulsion.

Thus, to comply with the Court’s ruling, the Senate’s use of the spending bill—or any other means—to obtain State acquiescence with the Feds’ national standard must be done carefully.

I claimed above that the Court got Dole only partially right.  Under the Federalism structure of our nation, the Federal government cannot (not just may not) force the States, individually or as a group, to do very much at all.  This is clear from Article I, Section 8; Article I, Section 10 [sic]; and the 9th and 10th Amendments.  Mandating national standards for matters that are internal to the States (vis., the rules by which a State’s citizens might drink, or drive, or etc. within that State) is prohibited by our Constitution.  The Court plainly understood this with its Dole ruling.


The Court’s understanding falls short, as demonstrated by that phrase pass the point at which pressure turns into compulsion.  It waffled on where to draw that line.  It had to waffle, because that line cannot be drawn.  It is the nature and purpose of “pressure” to get the target of the pressure to comply.  The first iota of pressure has as much compulsory content as the last iota that pushes to total over that line to a compulsion that even a Supreme Court can recognize.

The President can use his bully pulpit quite legitimately—and Presidents often do, beginning with Teddy Roosevelt—to jawbone with his target audience to get this or that issue handled “his way.”  So can the Senate, or the House, or the Congress as a whole.  There is, though, a not very fine line between remonstrating, on the one hand, and forcing (or “pressuring” for) compliance—compulsion—on the other.  Putting such jawboning into legislation goes far beyond mere argument and becomes an attempt at compulsion, albeit with a cotton glove.

The greater risk is not to our teenagers, or fellow travellers, from their driving habits, but to the Federal nature of our nation from a central government imposing uniformity on things that properly are within the…province…of our States.  That greater risk includes the risk to our teenagers’ welfare.

On the other hand, this might be a fine opportunity for the States to set a powerful precedent.   This might be the place for the States to start saying, “Done and done.  Keep your Federal highway dollars.  We no longer wish to have your Federal hands in our State pockets.”

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