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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.

 

Eroding Federalism
Gary Galles

The Washington Times
September 17, 2000
 

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 states 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 will. 

Our Constitutions 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 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 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 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 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? 

                

Gary M. Galles  Professor of Economics
Pepperdine University  Malibu, CA 90263

[email protected]