On Monday, October 23, President Clinton signed a bill requiring states to recognize 0.08 blood alcohol content as the legal standard for drunk driving. States that do not recognize this now-national baseline by 2004 will lose significant amounts of federal highway funding.
"For me this is a very good day for the Unites States," said President Clinton when signing the bill. Professor Galles of Pepperdine University is not so sure.
The Washington Times
Threatening to withhold or redirect funds a state would otherwise get
from Washington allows the federal government to dictate state policy,
buying state compliance with tax dollars largely raised from the state’s own citizens.
And it is a major way the federal government has increasingly
circumvented the federalism designed by the Constitution.
The latest episode of this abuse debuts October 1.
The 22 states that have not banned open alcoholic beverage
containers in cars and the 28 states that have not imposed tougher
penalties on multiple drunken driving violators, as demanded by the
federal government, will lose 1.5% of their federal highway construction
funds (to be earmarked for highway safety programs instead) for each
offense. This is on top of
a half billion dollar pot of money available only to states that have
imposed the 0.08% blood alcohol standard for intoxication the federal
government wants them to have.
This follows a long line of such manipulations.
Last year, states that did not reduce underage smoking
sufficiently faced a 40% reduction in federal block grants for substance
abuse and drug treatment. In
1997, threats to withhold airport trust funds forced Los Angeles to
change its airport policies. And
guess how the federal 55 mile per hour speed limit was imposed on
recalcitrant states? In
each case, whenever a state failed to "voluntarily" adopt a
law or policy desired by the federal government, the feds simply
withheld funds that would otherwise have gone to the state as a return
on taxes their citizens have paid.
This game of bribing states into federal
compliance with tax dollars generated from their own citizens is
increasingly being played using Washington's power over the purse. 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 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
Our Constitution’s framers designed a carefully limited federal government, in which, as
James Madison made clear in Federalist 45:
"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
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 those words with a system of checks
and balances by, in Federalist 51's words, "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
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 from Washington.
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 so many areas of government policy
have made their answer clear. But do we as citizens really believe that
we are better off federalizing our state and local policies?
And do our state and local representatives really believe that it
is worth further eroding the already extensively undermined
Constitutional constraints on Washington's power to impose its will on us just get back a few
more pieces of federal silver?
Galles Professor of