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 .S. Senator Jon Corzine (D-NJ) called a press conference on May 22nd to announce that he is sponsoring a bill intended to ban use of cell phones while driving. But the law would not be a direct prohibition by the federal government of such use. Instead, the proposed bill would withhold hundreds of thousands of federal dollars in vital highway money from any state that refuses to implement Corzine's ban. The Corzine bill is the latest in a long line of congressional attempts to evade the nation's constitutional model of limited federal power by applying pecuniary coercion against the states. These measures run counter to perhaps the most important premise underlying the Constitution: that the federal and state governments should share power.
Regardless of the supposed benefits of Corzine's bill, it exemplifies a disturbing trend of "feel good" legislation that comes at the expense of state powers. Corzine cannot simply sponsor a federal statute that would directly prohibit use of cell phones in the car, because he knows that it would be patently unconstitutional. Article 1, Section 8 of the Constitution limits congressional authority in such matters. The Corzine bill, however, skirts constitutional safeguards by using the Elastic Clause (Article 1, Section 8, Clause 18, which states that Congress shall have the authority to "make all Laws which shall be necessary and proper for carrying into Execution" the powers given to the federal government by the Constitution) as a disguise for direct regulation of traditionally local issues. One cannot think of a more local issue than the regulation of motor vehicles within state borders. Like the Motor Voter Act, the Corzine bill puts a new administrative and enforcement burden on the backs of the states while claiming political credit for "making America's highways safer."
Unfortunately, U.S. citizens cannot depend on the third branch to overturn Corzine's bill if it becomes law. In 1987, the Supreme Court essentially endorsed such illegitimate encroachments of the separation of powers, in the landmark case of South Dakota v. Dole. In that case, the Court considered the constitutionality of a federal law seeking to force changes in state laws concerning the drinking age. States that failed to adhere to this dictate would lose federal highway funds. The state of South Dakota sued the federal government, and the case went all the way to the Supreme Court. South Dakota was supported by several states and the National Conference of State Legislatures, which filed a Friend of the Court brief urging the Court to strike the law down as unconstitutional. The federal government grounded its case in the Spending Clause (Article 1, Section 8, Clause 1).
It seemed that South Dakota had a slam-dunk case against the feds, given the 1936 precedent of United States v. Butler. In Butler, federal judges struck down a congressional act as going beyond the authority granted in the Spending Clause; the Court ruled against the federal government and invalidated most portions of the law in question, the Agricultural Adjustment Act. The Butler Court noted that if the spending power were limited only by fuzzy congressional notions of providing for the general welfare, it would give "power to the Congress to tear down the barriers, to invade states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed."
Without expressly overruling Butler, the Rehnquist Court did an about-face on the Spending Clause by concluding that federal regulation of the drinking age was reasonably related to the funding of interstate highway construction by Congress and thus within the ambit of Congress's authority. Chief Justice Rehnquist, normally known for his fervent advocacy of states' rights, wrote the opinion for the majority, in which the Court explained that Congress could exercise its spending power and impose conditions on federal highway grants in virtually any way it wished, even if that power would directly conflict with the principle of federalism. Since the South Dakota case, Congress has increasingly wielded this newly carved power, the Corzine bill simply being the latest manifestation of this continuing power grab.
In the Federalist Papers, Alexander Hamilton argued for a broad and expansive interpretation of tax powers and appropriations for general welfare, rejecting the strict Madisonian view of Congress's tax and spending power as limited to an essentially administrative function. Yet even Hamilton never suggested that any power granted by the Constitution could be used to abrogate the decision of a duly elected state legislature. The current fad in cell phone regulation will presumably fade soon enough—regardless of future Supreme Court decisions—and possibly Americans may decide to elect level-headed congressmen devoted to preserving constitutional restraints on federal power. If they do not, state legislatures will be further relegated to the role of federal field offices charged with working out the details of ever more numerous federal directives.
Sean P. Melvin is an attorney, author, and professor of constitutional law at Elizabethtown College in Pennsylvania.
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