Vox Populi
A Letter to the Editor

Can the Federal Government Force a State to Change a Law?
Tuesday, December 3, 2002

by Henri-Paul Bolineau

I heard on the radio news this morning that New York State is trying to get a statute passed lowering the blood-alcohol ratio that will define someone as Driving While Intoxicated before the end of the year so that they won't lose any Federal money. What is this all about?

It sounds like the Federal government is forcing a State to change its own laws against its own will. If so, how would something like this fit into your own argument that, as you yourself say, "[i]n relation to Article VI, clause 2 of the original Constitution, the 10th Amendment means 'Despite the Constitution being the Supreme Law of the Land, this cannot alter the fact that- among others- the Police Power is reserved to the States'."? [Quotation is from Mr. Berg-Andersson's 1 December 2002 response to Mr. Stremsky- Ed.]

Henri-Paul Bolineau,

Mr. Berg-Andersson responds:

From various media sources, I have been able to glean that what this is all about is the following: The Federal government- under pressure from various Special Interest groups which are seeking tougher Drunk Driving laws (most notably, Mothers Against Drunk Driving)- has adopted legislation and accompanying regulations at the Federal level which say that any State that does not lower the blood-alcohol ratio defining one as too drunk to drive to 0.08% of blood volume (previously, the prevailing standard of statutorily defined intoxication had been 0.10%) by a certain time (from what Mr. Bolineau seems to be telling me, this would be the end of this calendar year of 2002) will lose its share of Federal Highway Trust Fund money. New York State has apparently not yet adopted such a statute and, obviously, does not want to lose its share of that Federal aid on which a highway-oriented and cash-strapped State like New York is so obviously dependent.

This is actually part of a rather disturbing long-term trend in Federal-State relations in the USofA. I first became aware of this issue some two decades or so ago when the New York City Transit system was forced to abandon double-letter designations for its BMT/IND (the so-called "B" Division) subway lines (for some five decades previously, double letters indicated local service on a line that also had express service designated by a single letter- thus the "AA" was, once upon a time, the local train that ran along the same line as the express "A" train). Apparently the Federal Department of Transportation considered double letters a waste of paint or some such and threatened to withhold Federal funding from New York's Metropolitan Transportation Authority unless the MTA agreed to, from that point on, designate all its "B" Division lines by single letters before money that the MTA needed to replace the signage throughout the system would be released to it.

But this was principally a central bureaucracy-vs.- local bureaucracy dispute. Where it started becoming really disturbing was when the Reagan Administration started applying it across the board in Federal legislation-vs.-State legislation disputes, an activity that showed the Reagan Administration's so-called "New Federalism" to be the most abject hypocrisy and the political "sleight-of-hand" the New Right of the 1980s had seemingly always intended it to be. One of the earliest examples of this was when the Reagan Administration threatened to withhold Federal Highway Trust funds from any State that did not adopt legislation that raised the given State's legal drinking age to 21 (many States had lowered the drinking age to 18 from 21 in the 1960s into the 1970s, though a few States had a legal drinking age of 18 well before this era of the so-called Youth Revolution... the theory was that this would reduce the ability of high school kids to acquire alcoholic beverages; the highway connection was that many high school teenagers also have driver's licences): all 50 States fairly quickly complied- I am sure regardless of the consensus of their respective citizenries.

Since then, this type of thing has become rather rampant- regardless of the Party or ideology that happens to control the various and sundry parts of the Federal government: Democrats- no less than Republicans- well know a good game of political extortion at the expense of the Liberty of the citizenry when they see one and have been all too eager to jump into the fray on behalf of their various pet legislative initiatives that have failed in many a State legislature. Thus, we have had- to take just one example- Seat Belt Laws adopted in all the several States at the point of the same kind of political "gun to the head". One of the arguments advanced on behalf of such an approach is that the People of the States would have wanted this legislation eventually anyway-- of course, if that be actually true, then why did this "gun to the head" have to be used in the first place? What fun it is to see conservative Utah squirming under the thumb of legislation originating in much more liberal California! What joy it is to see the liberal intelligentsia of New York City fidgeting as their State is forced to adopt laws highly prized by so many God-fearing Mississippians!!

The situation which apparently has the State of New York scrambling to get an 0.08% blood-alchohol ratio-as-Intoxication bill passed and signed into law as soon as is practicable is merely the latest sorry episode in this whole "alleged New Federalism" story now two decades running. Nevertheless, such political extortion on the part of the Federal government does not, in any way, change the essential constitutional premise of which I have written. I will return to one hypothetical scenario of mine to illustrate my point:

Let's go back to the "one strike you're out" hypothetical I utilized in my 1 December response to Mr. Stremsky (which Mr. Bolineau has, apparently, read- since he quoted from it at the end of his 'vox Populi' to which I am now responding). Let's say that Congress not only strongly urges States to adopt such legislation but, further, passes a law that says that any State that does not adopt "one strike you're out" legislation within 3 years will, at that time, no longer receive its share of Federal law enforcement assistance funds (say, funds which allow the States to hire extra local police officers at Federal- not State- expense). And let's further say that, despite this, New Jersey's State Legislature still does not adopt such legislation-- what then? Yes, New Jersey would no longer receive its share of Federal law enforcement assistance funds (and the Governor and Legislature of my State would be taking a huge political risk by allowing this to happen) but- again I ask- what then?! In the end, Congress can wave its dollars in front of my State's face but cannot make New Jersey adopt such legislation. And we are still back to that which I wrote in my final response to Mr. Stremsky on this issue:

[The Constitution] does not say that the Federal government supersedes State laws and customs... instead, in that document's own 10th Amendment, it states that "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" [underlining mine: REB-A] This, I will say once more, is what is known as the Reserved Powers clause of the Constitution and, as a result of this clause, New Jersey doesn't have to adopt "one strike you're out" legislation if it doesn't want to- even if Congress would so strongly like it to do so.

The fact that the lobbyists for Special Interest causes and their puppet politicians in Washington have had to resort to a rather sleazy legislative practice ("sleazy" and "lobbyist"/"politician" appearing in the same sentence? Who woulda thunk it! [;-)]) in order to overcome the basic concept of the Reserved Powers clause that is the essence of the 10th Amendment doesn't at all change the fact that the Reserved Powers clause exists and, thus, has to be overcome in the first place (for, if the Reserved Powers clause was, indeed, not as I have said it is- in these responses of mine to 'vox Populi' over the last few days, why would such political extortion as I have earlier described in this very response then even be resorted to in the first place?)

It all has to do with the very concept of Federalism itself:

On most of this planet, Nation-States are so-called "Unitary" states- that is, ones where governmental power is held by a central government, some of which power may (or, for that matter, may not!) be devolved upon its administrative subdivisions (the different levels of which are usually delineated as first-order administrative units [the ones that cover the largest area within the Unitary state and are, thus, closer to the central government in the organizational chart], second-order administrative units, third-order, etc.). The key is that, in a Unitary State, the central government is the only one that has so-called "sovereign" powers, while the administrative subdivisions below it are created for the convenience of the central government and can only act on those subjects which the central government allows it to act on; theoretically (subject, of course, to any restrictions built into the Nation-State's own Constitution and laws), the central government could abolish all its administrative subdivisions and just do everything political and governmental within the borders of a Unitary state all by itself.

France, for example, is just such a "Unitary" Nation-State: only the Republic as a whole has political sovereignty... the first-order administrative units, the Departments, are creatures of the Republic and operate only for the convenience of the Republic; likewise, the administrative units below the Department level (arrondisements, cantons and communes): the point here being that- subject to its own laws, of course- the sovereign national government of France can change the boundaries of all its subdivisions, on its own decide that a power enjoyed by a given subdivision will, from now on, be enjoyed by a different subdivision, or even abolish subdivisions altogether-- such is the sovereign, as well as supreme, position of the "Unitary" Nation-State.

But we here in the United States of America have, instead, a "Federal" system- in which sovereign power is shared between the States of the Union and the Federal/national government. In a "Federal" Nation-State, it is the units making up the federation that are "Unitary"- not the central government of the federated Nation-State itself. So, for example, my own State of New Jersey is a "Unitary" state- one with a central government that, theoretically, holds all sovereign power: New Jersey has, of course, chosen to devolve power upon its first-order administrative units (aka "Major Civil Divisions")- its Counties and its second-order administrative units (aka "Minor Civil Divisions")- its Townships and Municipalities (Cities, Towns, Boroughs and Villages) and there might even be third-order administrative units of various types (the City of Newark, for example, is divided into Wards)... theoretically (subject, of course, to restrictions on the State's sovereign power as a Unitary state built into the State Constitution of New Jersey and any relevant statutes adopted thereunder), my State could just get rid of all of its Counties, Townships and Municipalities and then run everything from the State House in Trenton because a State of the Union, and none of its administrative subdivisions, has the sole sovereign power here in The Land of the Free and the Home of the Brave.

Now, it is true that such an act (the abolition of all of New Jersey's local governance) is highly unlikely to ever happen: the Townships and Municipalities of my State have historically been rather jealous and quite protective of their "home rule"-- nevertheless, this does not at all change the fact that only the State- and not any of its local governments- is sovereign within its own borders: this means that the States of the Union are themselves "Unitary" and that their relationship to the United States of America as a whole is, obviously, "Federal", that both a State of our Union and the Federal government of that Union as a whole each have sovereign powers which have to be shared between them.

Now, there are two types of federation possible within a "Federal" system: one in which a Federal government- that is, the central/national one- grants specific sovereign powers to its Unitary constituent units (States, Provinces, etc.) and reserves all the rest to itself; the other is one in which the Unitary constituent units have granted specific sovereign powers to the central/national Federal government and reserves all the rest to themselves. Germany is an example of the former: the Basic Law (the German Constitution) allows the Laender of the Federal Republic to do certain specified things which the Federal government is not allowed to encroach upon but anything else is pretty much left to the Federal government itself in Berlin (and I am old enough to have to force myself to remember that Bonn is no longer the capital!). As I have pointed out in a previous response to Mr. Bolineau, his native Canada is the same way under the British North America Act of 1867 (as part of a "repatriated" Canadian Constitution of 1982)-- that is, the Canadian Provinces can do only those things specified for them to do and everything else is done by the Federal government in Ottawa.

But the United States of America is of the second type of federation- that is, one in which the States of our Union granted specified powers to the Federal government via the Constitution and reserved all the rest to themselves... the 10th Amendment was adopted- along with the rest of the Bill of Rights- as a condition for ratification in many of the States because there was a fear that Article VI, clause 2 in the original text of the Constitution declaring that document to be the Supreme Law of the Land would, indeed, reduce the States to mere first-order administrative units of the national government (that is, there was a fear within the Ratifying Conventions that met in 1788 that- instead of being "Federal"- the United States of America would become "Unitary" unless some restrictions on the Federal government in favors of the Union's constituent States were specifically added to the document): this is why I have argued- in my responses to these recent 'vox Populi' from Mr. Stremsky and Mr. Bolineau- that the 10th Amendment reins in the Supremacy clause that is the essence of Article VI, clause 2 of the original Constitution by specifically stating that many sovereign powers are still reserved to the States, that the Constitution was not at all intended to grant all governmental power in the USofA to the Federal government at the expense of the States.

I guess the essential issue between myself and Mr. Stremsky over the constitutionality of his National Police Force is that Mr. Stremsky (based on his notion that the 10th Amendment merely "allows" the States to do what the Constitution does not prohibit them from doing) seems to be implying that Article VI, clause 2's Supremacy clause means that, ultimately, all governmental power in the United States accrues to the Federal government (through its Constitution being the Supreme Law of the Land): this would be true if America as a whole were a "Unitary" Nation-State. However, in our Federal system, the States of the Union are the "Unitary" states, sharing power with the government of the United States in a "Federal" relationship because, again, each level of government- the State and the Federal- has inherent sovereignty; furthermore, unlike in Germany or Canada, it was the States of the United States which gave up some of their sovereign powers to the Federal government in order to first form that "more perfect Union" back in the late 1780s: but the key word here is some of their sovereign powers, not all of them! (that is, the States didn't say "we're giving up all our sovereignty to the Union and then we're going out of business unless the new Federal government tells us to stick around and work for the Feds as mere first-order administrative units [along the lines of what Counties are to the States of the Union themselves]").

It is true that, in subsequent Amendments to the Constitution, the States gave up even more of their sovereign powers (in the 14th Amendment, States gave up their power to take away Life, Liberty or Property without Due Process of Law and to deny persons under their jurisdiction the Equal Protection of the Law; in the 15th Amendment, States gave up their power to tell African-American men they can't vote; in the 17th, States gave up- to their own People- the power to choose the U.S. Senators from each State; in the 19th, States gave up their power to tell women they can't vote; in the 26th, States gave up their power to tell 18, 19 and 20 year olds they can't vote-- these being just some of the more obvious examples) but there has never been an Amendment to the Constitution (at least, so far! [;-)]) in which the States have formally given up every shred of sovereignty they still retain as Unitary states, political "guns to the head" in the form of the withholding of Federal funds notwithstanding!

Again, it may all be a matter of semantics, but I say once more- and for the last time- that I strongly disagree with Mr. Stremsky's implication that the 10th Amendment only says that the States may not be kept from doing things the Constitution does not ban; yes, it does say that in part-- but it also specifically reserves powers to the States: that is, there are powers that the Federal government does not have that the States have reserved to themselves (because they were never granted by the States to the Federal government in the first place)- among these being a general Police Power. The 10th Amendment clearly states that "powers not delegated to the United States" and also not "prohibited by [the Constitution] to the States" are "reserved to the States respectively, or to the People"-- so, if a power has not, in fact, been "delegated to the United States" by the States, the States then retain it (for "all is retained which has not been surrendered")- even with the Federal Constitution being the Supreme Law of the Land under Article VI, clause 2 and, since the Police Power was never ever delegated to the United States under the Constitution (there is no provision in Article I, Section 8 or any other portion of the original document that has specifically granted the Police Power to either of the three branches of the Federal government), it is- by the very terms of the 10th Amendment- reserved to the States: thus, the Federal government can't claim such a Police Power- even with Article VI, clause 2- because the Constitution itself forbids it from doing so! (because one provision of the Constitution cannot- on its own- nullify another part of the very same document-- unless one is somehow arguing that Amendments to the Constitution are somehow lesser portions of the text to the original Constitution: in which case, why even bother having amendments then?)... I can't make it any simpler than this! If one doesn't understand my position that a National Police Force would be of dubious constitutionality on 10th Amendment grounds or, even if one does understand it, still doesn't accept it, then so be it!!-- we will have to agree to disagree and leave it at that!!!

But I also want to make it clear that the fact that States might feel compelled to pass legislation demanded by the Federal government under pressure of losing Federal aid if they don't, in fact, pass such legislation does nothing at all to alter the constitutional position of the Reserved Powers clause that is at the heart of that 10th Amendment.


Vox Populi Home