Congress Hasn't The Authority
Last year, President Clinton signed legislation that orders states to change their statutes so that .08 is the blood/alcohol concentration (BAC) for arrest for drunk driving. The BAC edict came as a part of the new Federal Transportation Appropriations Bill. States have until October 1, 2003, to pass a .08 BAC or face withholding of 2 percent of their federal highway construction funds. States that have not passed a .08 BAC law by 2004, will lose 4 percent of their federal highway construction funds, 6 percent by 2005, and 8 percent thereafter. The Commonwealth of Virginia and a number of states already have .08 blood/alcohol concentration as their standard; Colorado has a stricter standard of .05 BAC. States such as Maryland, and thirty others use BAC of .10 as their legal definition of drunk driving.
This heavy-handed federal edict is offensive; but only the stupid would see an objection to it as tantamount to being an advocate for drunk driving. Drunk driving is a clear reckless disregard for the lives and property of others and should be punished. The issue is not whether there should be a .08 or .10 BAC. The important issue, Americans constantly ignore to our detriment, is whether Congress has exceeded its constitutional authority by mandating a particular blood/alcohol level. Congress has no such authority; setting blood/alcohol levels is a state and local function.
Republican and Democrat members of Congress alike have once again demonstrated constitutional ignorance and/or disrespect. You say, "How? Williams, explain yourself." The Constitution, that both presidents and congressmen swear on the Bible to uphold and defend, includes, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Tenth Amendment has not been repealed and nowhere in the Constitution has Congress been given authority to regulate blood/alcohol concentrations for drunk driving. It does have authority to do so in the federal jurisdiction - Washington, D.C. Congressmen know this. If they simply ordered the states to set a .08 BAC, the Supreme Court just might rule their action unconstitutional, so they turn to extortion. When you and I purchase gasoline, we pay a hefty federal user tax earmarked for highway construction and maintenance. What Clinton and Congress have ruled is: we will pay the highway tax but we'll get our full share of it only if we're obedient.
Washington's heavy-handedness should be challenged. Washington should learn that two can play the threat game; but it requires principled and brave state governors and legislators. Here's what I propose. States should set up a Federal Tax Fund escrow account. Then state legislatures should enact a law requiring all persons liable for any federal tax, that's a component of the highway users fund, to remit those taxes directly to the state treasurer's Federal Tax Fund. The state's revenue department would make monthly remittances of the receipts to the IRS along with a list of payees and respective amounts paid.
If Washington penalizes the state by withholding highway construction funds for not enacting a .08 blood/alcohol concentration, the state treasurer would be ordered to impose a surcharge on the account to make up for the federally withheld funds for its highway construction and remit the adjusted fund balance.
It's high time that we send Washington, D.C. a clear message that when the states came together in 1787 they created the federal government as their agent. As such the federal government is a creature of the states - not the other way around. It's going to take brave and principled Americans to send that message but, alas, bravery and principle are in short supply these days.
Walter E. Williams
March 13, 2001
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