Checks, Balances and Cell Phones.

With all of the focus on the possibility of a Federal Government takeover of the healthcare industry, another more subtle but also more dangerous threat to the American federalist system is being implemented almost unchecked. What is the subject of this great threat? Cell phones.

The Federal Government is about to pass a law banning all texting while driving. Of course, who could be against such a ban? Texting while driving is beyond stupid and it should be banned by every state in the Union; and, that is just the point: it should be banned by every STATE in the Union, not the Federal Government.

The Federal Government usually exerts authority over the states, legitimately or illegitimately, through one of two ways: through the power of the Interstate Commerce Clause in the Constitution or through the purse strings.

The Interstate Commerce Clause allows the Federal Government to regulate the means of commerce with other nations and between the states. Its intent is to ensure that regulations of goods and services between the states are fair and uniform, and that the United States has one trade policy with foreign governments rather than fifty separate ones.

The Interstate Commerce Clause, however, has been systematically expanded so that it gives the Federal Government license to exert primary regulatory jurisdiction over anything that even looks in the direction of a state border. Like with federally mandated speed limits in the 1970’s and 1980’s, the Federal Government interprets its explicitly enumerated power to regular interstate commerce to implicitly extend to regulation of all means of intrastate transportation as well.

Even though the Federal Government often assumes and acts as if this specific power to regulate interstate commerce is all but ubiquitous, it does not want this assumption to be tested often in court; therefore, rather than directly assert jurisdiction, it does so in a backhanded way through the withholding of federal funds to those states that don’t bow to the Federal will. It gives the illusion that states still have sovereignty and that their 10^th Amendment powers have not been illegally usurped by the Federal Government, while at the same time giving the Federal Government such financial influence that states cannot afford to exercise their 10^th Amendment powers if their wishes are against those in Washington.

Like with bans on texting while driving, the Federal Government mostly wields this power regarding issues that most sane people cannot in good conscious dispute. Of course people should not text while driving; over course people should wear seatbelts; and, of course people should wear helmets while riding a motorcycle. How can anyone possibly argue against such things? Who cares if the Federal Government compels compliance with these common sense issues by withholding Federal funding to the states?

From the view of the issues involved, there is nothing wrong with it; however, from the view of the stability and integrity of a constitutional democracy and a federalist republic, such usurpations by the Federal Government violates the heart of U.S. Constitutional law by manipulating its letter and by overriding essential checks and balances that protect the integrity and sovereignty of the states and the Federal Government. Unfortunately, I believe that the Supreme Court in the past has played into the “Constitutionality” of this “coup de states” instead of stopping it. (I am not lawyer, so I invite any who know Constitutional and Supreme Court rulings better than I do to comment; however, I am pretty sure that the Supreme Court has ruled that such Federal financial manipulations are “Constitutionally” legal.)

At least with the health care debate, a credible argument can be made that the healthcare industry is one beyond the bounds of any single state and that the Federal Government is the only entity with the power to regulate such an industry so that it is fair and equitable throughout the Union. (A credible argument can be made although it is not one I necessarily buy). But this current ban on cell phone use is just the Federal Government exerting power for power’s sake, becoming like a drug dealer that arbitrarily controls the drug price and supply to his customers through exploiting the captive need that their addiction creates.

About the only good thing that came out of the disgraceful administration of Governor Edward Meacham in Arizona was the direct challenge to such Federal bullying. After years off having to drive ridiculously slow and dangerous speeds for hours through straight, desert freeways, Arizona became the first state to raise its speed limit from 55 MPH. The Federal Government knew that such a national speed limit no longer had the peoples’ support as a necessary evil in saving fuel or in promoting traffic safety, at least in most of the western states. A legal challenge to the Federal authority to regulate speed limits under the powers of the Interstate Commerce Clause and by state addiction to Federal funds was immanent, so states were given the “privilege” to exercise their rights to set their own speed limits.

Because we are talking about speed limits and cell phone texting, the issue may seem a bit trivial on the surface; however, the precedents that are being set are fair reaching, dangerous and can tear at the fabric of the American Union since there are two very real possibilities for the future of an unchecked Federal Government: One: that the states will continue to de-evolve into nothing more than extensions of the Federal Government; that they will simply be another layer of a bloated bureaucracy that functions to ensure that the Federal will is done instead of being a check and balance to ensure that the Federal will has not been twisted by an unfettered Federal appetite for power. Two: many of the most influential states will begin to realize that the expense of supporting an unfettered federal government is actually costing more than what is received in return.

While the first scenario seems the most likely to me, the second is not beyond the realm of possibility. Just a decade ago, talk of the Union itself being in danger of disintegrating would be thought of as ludicrous; however, bad economies and bad wars tend make the ludicrous a bit more credible.

For example, California is currently the eighth largest economy in the world all by itself; yet, for every dollar the citizens of California send to Washington D.C., only about 75 cents comes back for use within its own borders; meanwhile, a handful of other states, and the District of Columbia, get two to five times the federal tax revenue back than what their citizens contribute. Yet, even as California’s tax resources are hemorrhaging eastward, the poverty rate in California is climbing, education funding is dropping like a stone and the eighth largest economy in the world is paying its workers with IOUs. With such pressures from without and from within, it is not out of the realm of possibility that Californians may start questioning what was once unquestionable, especially in a state that still has a strong sense of sovereign identity with the land size, population and natural resources to back it up.

We need to call the Federal Government’s bluff. Do we really think that the Federal Government will allow the highway system in this country to fall into disrepair because a state government will not ban texting while driving? Of course it won’t because it can’t. It is too dependent upon keeping the states fat, dumb and addicted so that the second scenario outlined above never happens.

Don’t get me wrong, no one should be texting while driving: PERIOD! But, ultimately, more dangerous than texting while driving is a Federal ban on it. It cannot be supported constitutionally; and, no matter how well intentioned the ban might be, it cannot justify the dismantling of the delicate and precious system of checks and balances that keeps this Union of American states from dissolving into the single-minded tyranny of The American State.

from Lee's blog:

Opinions of a Lutheran Desert Rat