Challenges to NMSL?

[hbelkins]

Does anyone remember if there were any 10th Amendment challenges to the national 55 mph speed limit? Or was it imposed the same way that the 0.08 BAC, drinking age of 21 and seat belt laws have been -- that states had to comply or they'd lose federal highway funding?

I can't imagine the federal government ever trying to legislatively impose a national speed limit again, lest it be sued by a multitude of states, groups and individuals on 10th Amendment grounds.

It's hard to believe no one challenged it back in the 1970s. If they did, I never heard about it.

[Scott5114]

Yes, NMSL was enforced through the threat of losing highway funding. Some Googling turns up that Nevada posted a 70 MPH limit on three miles of I-80 in June 1986. The Nevada law that authorized this invalidated itself if FHWA withheld federal highway funding (I'm guessing the intent was to find out how serious the feds were about NMSL). So of course FHWA ended up withholding funds, the state law was invalid, and the 70 signs came down.

I'm not aware of any court challenges to NMSL. There was a case involving South Dakota and the drinking age, but in that case SD's argument was that the law should be invalid because the drinking age has nothing to do with highway funding so the two shouldn't be tied together. The Supreme Court basically said that per the Constitutional "power of the purse" Congress could do whatever it wanted with federal money and hand it out or withhold it according to whatever policy it felt was best.

[Road Hog]

In the case of NMSL, states didn't appear to fight it through legal channels, but instead opted for lax enforcement, or no enforcement at all in some places. For a while, I think Nevada was handing out $5 speeding tickets.

The commerce clause back then was considered iron-clad, so states probably felt they didn't have a leg to stand on. Besides that, most state legislatures (South Dakota being an exception) didn't have the political guts to fight against measures that were considered "for the good of the country." That has certainly changed in the last four years.

[Zmapper]

After the Obamacare ruling, can the federal government still tie federal funding to another, barely related program? I stumbled upon this blog post a while back, and he seems to be on to something. Of course, any serious discussion would require a lot more research than a blog post, but it may just be that the Obamacare ruling had a pretty nice inadvertent silver lining.

[1995hoo]

Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), involved Nevada's unsuccessful challenge to the NMSL on constitutional grounds.


(edited to fix a grammatical error)

[Alps]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

[Scott5114]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

Unfortunately that's not the Supreme Court's view of the situation. They see it as Congress having the Constitutional power to disburse funds as they wish, and states having the power to reject the funds if they don't agree with the stipulation attached to them.

[english si]

The Obamacare ruling said something like "they can refuse your funds, and you can't then defund a different program out of spite. You can't throw your toys out of the pram and endanger old/poor people's lives by cutting Medicare and Medicaid just because the state refuses Obamacare funding"

It's not 10th amendment, but having funding for something cut as you lower the drinking age to 18, or legalise pot, or (back in the day) legalise driving more than 55mph (I'd imagine lots of states didn't enforce it much) would be something similar surely? Plus there is a 10th amendment case there for weed - there needed to be an amendment to the Constitution to prohibit alcohol, there wasn't one to prohibit drugs. Federal Government only has interstate commerce as a enumerated power, so provided it doesn't cross state lines, it should be fine.

[cpzilliacus]

It's not 10th amendment, but having funding for something cut as you lower the drinking age to 18, or legalise pot, or (back in the day) legalise driving more than 55mph (I'd imagine lots of states didn't enforce it much).

Regarding enforcement of the 55 MPH limit, most (all?) states did not have the resources to enforce a law that was so widely ignored. 

In my state of Maryland, as well as nearby areas of Virginia, vestiges of the NMSL remain on many freeways with much higher design speeds.  Yes, 55 is ignored by all drivers.

[Off-topic rant]

Regarding marihuana/cannabis, I despise the stuff.  I hate the reek of it when smoked, and I don't care for the "culture" surrounding its use. 

I've never used it, tried it or wanted to (I am probably the only graduate of my high school that can say that).

Still, it ought to be legal - not "decriminalized," but legal and taxable.

Every level of government would save a huge amount of money by not enforcing unenforceable marihuana laws, and would collect a vast stream of revenue from legal sales of dope.

[/Off-topic rant]

[1995hoo]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

Unfortunately that's not the Supreme Court's view of the situation. They see it as Congress having the Constitutional power to disburse funds as they wish, and states having the power to reject the funds if they don't agree with the stipulation attached to them.

I believe the case law goes one step further in terms of highway funding. In terms of the Spending Clause allowing Congress to enact this kind of law, the courts noted that no state has a constitutional right to receive federal highway funds, and therefore Congress was entitled to put conditions on states' receipt of those funds as long as, in doing so, Congress does not seek to accomplish an otherwise-unconstitutional goal. For example, to use a much more recent Supreme Court precedent, Congress couldn't pass a law saying that unless a state bans ALL guns the state will not receive federal highway funds, because in the Heller case a few years ago the Supreme Court found that the Second Amendment establishes individual citizens' right to own guns such that the states cannot ban all guns.

The Obamacare ruling said something like "they can refuse your funds, and you can't then defund a different program out of spite. You can't throw your toys out of the pram and endanger old/poor people's lives by cutting Medicare and Medicaid just because the state refuses Obamacare funding"

It's not 10th amendment, but having funding for something cut as you lower the drinking age to 18, or legalise pot, or (back in the day) legalise driving more than 55mph (I'd imagine lots of states didn't enforce it much) would be something similar surely? Plus there is a 10th amendment case there for weed - there needed to be an amendment to the Constitution to prohibit alcohol, there wasn't one to prohibit drugs. Federal Government only has interstate commerce as a enumerated power, so provided it doesn't cross state lines, it should be fine.

The Supreme Court has taken the Interstate Commerce Clause a bit further in finding that a single-state action can unduly affect interstate commerce. Perhaps the best example is the Bibb case from 1959 where Illinois had a law, unique among all the states, requiring a specific type of truck mud flap. No other state required that type of mud flap and one state specifically banned that type. The Supreme Court ultimately found that Illinois's law must fall because it created an undue burden on interstate commerce due to the impossibility of complying with both states' laws unless truck drivers pulled off and changed their mud flaps every time. (Had it been a situation where 49 states allowed either type, and Illinois required the one, there would have been no problem because you could comply with both laws by using the Illinois flap. But that wasn't the situation.)

There was also the Heart of Atlanta Motel case where the Civil Rights Act of 1964 used the Interstate Commerce Clause to ban racial discrimination in public accommodations, including hotels. The Heart of Atlanta motel maintained its policy of not allowing blacks and the owner filed suit against the enforcement of the Civil Rights Act; among other rationales, he argued that a motel located in one state and not part of a chain is not engaged in interstate commerce. The Supreme Court found that the operation had enough of an "effect" on interstate commerce for Congress to be able to regulate it; the motel in question was located near I-75 and I-85 and the record showed that some 75% of its visitors came from other states.

Lately they've pulled back a bit on the Interstate Commerce Clause; the Obamacare opinion, for example, held that Obamacare couldn't be justified under that clause. It's still a pretty broad power, though.

(Alcohol cases are a special situation because the Twenty-First Amendment gives Congress and the states concurrent power and provides that alcoholic beverages cannot be imported into a state in violation of the laws thereof. Virginia has some asinine, archaic laws; for example, one law says you can't bring in more than a "gallon" of alcohol, whatever the heck that means–alcoholic beverages are not sold by the "gallon." The Supreme Court found a few years back that states can't discriminate against out-of-state wineries in terms of allowing shipping–for example, one state, I don't remember which, allowed in-state wineries to ship to in-state residents but wouldn't allow out-of-state wineries to do so and the Court said they can't discriminate against interstate commerce regardless of the Twenty-First Amendment. Of course, the downside of that means the state is free just to ban ALL wineries from shipping.)


Anyway, to circle back to highway funding, the point is that constitutional law is a lot more complex than it seems like it should be and probably the single most important principle to remember on highway funding is that no state has any right to receive federal highway funding.

[bugo]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

Unfortunately that's not the Supreme Court's view of the situation. They see it as Congress having the Constitutional power to disburse funds as they wish, and states having the power to reject the funds if they don't agree with the stipulation attached to them.

The Supreme Court has been shitting on state's rights for centuries now.  Almost every ruling they make favors federal power and corporate monopolies.

[J N Winkler]

Regarding marihuana/cannabis, I despise the stuff.  I hate the reek of it when smoked, and I don't care for the "culture" surrounding its use.

I've never used it, tried it or wanted to (I am probably the only graduate of my high school that can say that).

Still, it ought to be legal - not "decriminalized," but legal and taxable.

Every level of government would save a huge amount of money by not enforcing unenforceable marihuana laws, and would collect a vast stream of revenue from legal sales of dope.

It has also been said that if marijuana were legal, the price of the potent stuff would drop to a few cents per joint since the cost burden of crime (organized or otherwise) would be removed from the supply chain, and legal vendors would be able to take advantage of economies of scale that allow pass-through of a very low farm-gate price.

This said, however, I don't think we will ever see full-on marijuana legalization, even if it were not stigmatized as something lazy Mexican laborers smoked (as it was at the beginning of the marijuana ban in the early twentieth century), or as a so-called "gateway drug" (as it has been in more recent decades).  I think the reasons are primarily cultural.  Addiction is sort of like pornography in that while it is difficult to define precisely, the general public has a general idea of what it is and what it means for long-term mental and physical health, and wants no part of it.  People are also less willing to tolerate visual evidence of a marijuana high than they are willing to tolerate visual evidence of a nicotine or ethanol high, no matter how strenuously marijuana legalization advocates argue that marijuana has fewer long-term health disadvantages than alcohol or tobacco.  Marijuana usage is also harder to hide because it gets into apocrine sweat and stays there for a week after last ingestion.

And yes, I have experienced a marijuana high (though solely from second-hand smoke)--and I know exactly how judgmental people's attitudes are toward it even in supposedly tolerant countries like the Netherlands.  I am not opposed to legalization as such, but I think those who advocate it are completely delusional if they believe that the standard libertarian arguments in favor of it are persuasive to the general public.

[bugo]

This said, however, I don't think we will ever see full-on marijuana legalization,

I think it will be legal in 5-10 years.  The media is full of stories about cannabis legalization, and I've noticed that right before something big happens there are many stories in the media about it.  And Presidential candidate Gary Johnson said that he believes it will be legal in 4 years.  I hope he's right, because prohibition is an infringement of civil rights and it plain doesn't work.  Not to mention a colossal waste of prison space and police manpower.

even if it were not stigmatized as something lazy Mexican laborers smoked (as it was at the beginning of the marijuana ban in the early twentieth century), or as a so-called "gateway drug" (as it has been in more recent decades). 

The "gateway drug" theory is false.  If you want to be technical about it, caffeine is usually the first psychoactive drug most Americans use.  Therefore caffeine is THE "gateway drug."  I was a regular caffeine user as a very small child, before I was out of diapers, because my parents put Coke in my baby bottle.  Apparently I really liked Coke when I was a baby.  The second and third drugs that most kids use are nicotine and alcohol (two of the most damaging drugs out there.)  So if cannabis is a 4th level "gateway drug," then I guess cocaine and heroin are  5th level "gateway drugs" if you want to use their logic.

I think the reasons are primarily cultural.  Addiction is sort of like pornography in that while it is difficult to define precisely, the general public has a general idea of what it is and what it means for long-term mental and physical health, and wants no part of it.  People are also less willing to tolerate visual evidence of a marijuana high than they are willing to tolerate visual evidence of a nicotine or ethanol high, no matter how strenuously marijuana legalization advocates argue that marijuana has fewer long-term health disadvantages than alcohol or tobacco.  Marijuana usage is also harder to hide because it gets into apocrine sweat and stays there for a week after last ingestion.

Cannabis is not physically addictive, although it can be habit forming.  But anything can be.  The first thing I do when I get up in the morning is to get a Coke.  And caffeine IS physically addictive.  If I don't have my morning Coke then I'm useless.

And yes, I have experienced a marijuana high (though solely from second-hand smoke)--and I know exactly how judgmental people's attitudes are toward it even in supposedly tolerant countries like the Netherlands.  I am not opposed to legalization as such, but I think those who advocate it are completely delusional if they believe that the standard libertarian arguments in favor of it are persuasive to the general public.

Over 50% of the public now supports legalization.  If the Colorado bill passes, expect more states to fall.  The libertarian (small L) movement strongly advocates legalization, and that movement has taken off in a big way.

[J N Winkler]

We will just have to see what happens in five to ten years.  I don't dispute that the marijuana legalization movement has had some success at the state level, but federal law still has supremacy and I am not seeing any signs of movement at the national level.  I agree that the gateway drug theory has no real scientific support, but I continue to be skeptical about marijuana legalization gaining traction at a national level because I think parents--even ones who themselves smoked pot when they were sowing their wild oats--don't want pot to be available to their kids.  It's kind of like sex:  parents who were barebacking at age 15 get into a cold sweat when they imagine their kids doing the same.

[TXtoNJ]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

Unfortunately that's not the Supreme Court's view of the situation. They see it as Congress having the Constitutional power to disburse funds as they wish, and states having the power to reject the funds if they don't agree with the stipulation attached to them.

The Supreme Court has been shitting on state's rights for centuries now.  Almost every ruling they make favors federal power and corporate monopolies.

Doesn't really matter. What the Supreme Court says is the law, like it or not. Doesn't mean you have to agree with it.

[bugo]

We will just have to see what happens in five to ten years.  I don't dispute that the marijuana legalization movement has had some success at the state level, but federal law still has supremacy and I am not seeing any signs of movement at the national level.  I agree that the gateway drug theory has no real scientific support, but I continue to be skeptical about marijuana legalization gaining traction at a national level because I think parents--even ones who themselves smoked pot when they were sowing their wild oats--don't want pot to be available to their kids.  It's kind of like sex:  parents who were barebacking at age 15 get into a cold sweat when they imagine their kids doing the same.

It's easier for kids to get weed than it is for them to get alcohol.  Dealers don't care about your age when they sell their products. 

[bugo]

Threatening states if they don't enact laws is the same as enacting the laws yourself. It should be illegal under the 10th Amendment. That goes for NMSL, BAC, drinking age, seat belt, age of majority, drug laws, etc., etc.

Unfortunately that's not the Supreme Court's view of the situation. They see it as Congress having the Constitutional power to disburse funds as they wish, and states having the power to reject the funds if they don't agree with the stipulation attached to them.

The Supreme Court has been shitting on state's rights for centuries now.  Almost every ruling they make favors federal power and corporate monopolies.

Doesn't really matter. What the Supreme Court says is the law, like it or not. Doesn't mean you have to agree with it.

And they're still wrong. 

[agentsteel53]

It's easier for kids to get weed than it is for them to get alcohol.  Dealers don't care about your age when they sell their products.

when I was in college, I had no idea where to get weed, but I knew exactly who was over 21 who would buy me all the alcohol I wanted...

[cpzilliacus]

Getting back to the original discussion here (and I am guilty getting things off-track with the marihuana rant), the 55 MPH speed limits in place (still) in many states just breeds disrespect for the law. 

A speed limit that is nearly 100% ignored by the motoring public is worse (in my opinion) than no speed limit at all. 

If a freeway segment has a design speed of 70 MPH, then the posted speed really ought to be 70 MPH.

[NE2]

Getting back to the original discussion here (and I am guilty getting things off-track with the marihuana rant), the 55 MPH speed limits in place (still) in many states just breeds disrespect for the law. 

A speed limit that is nearly 100% ignored by the motoring public is worse (in my opinion) than no speed limit at all. 

Do you feel the same about 'don't walk' signals that are ignored by almost all pedestrians?

[kphoger]

Getting back to the original discussion here (and I am guilty getting things off-track with the marihuana rant), the 55 MPH speed limits in place (still) in many states just breeds disrespect for the law. 

A speed limit that is nearly 100% ignored by the motoring public is worse (in my opinion) than no speed limit at all. 

Do you feel the same about 'don't walk' signals that are ignored by almost all pedestrians?

I once got a lecture from a police officer for crossing the street on a flashing DON'T WALK (anarchy!).  I actually made it to other side of the street before the cross street's light turned red, but then I had to sit on the bench and wait for the bus.  The cop pulled into the parking lot behind me and chewed me out.  Oh well, I guess I had nothing better to do until the bus came.

[1995hoo]

Getting back to the original discussion here (and I am guilty getting things off-track with the marihuana rant), the 55 MPH speed limits in place (still) in many states just breeds disrespect for the law. 

A speed limit that is nearly 100% ignored by the motoring public is worse (in my opinion) than no speed limit at all. 

Do you feel the same about 'don't walk' signals that are ignored by almost all pedestrians?

We're starting to get off-topic, but what I resent is when pedestrians ignore the "Don't Walk" signal AND expect drivers who have a green light to stop and yield to them. It's especially problematic if you're at a light that allows turns only on a green arrow and the pedestrians think they're entitled to walk during that green arrow cycle despite the "Don't Walk" signal. Of course you can't just mow them down, but if you don't get somewhat aggressive about forcing your way through that crosswalk you're never going to get around that corner legally.

(I'm thinking primarily of 18th & L NW in Washington DC, but it's not an issue unique to that corner.)

[Zmapper]

I'm just thinking out loud here, but perhaps the Obama administration crackdown on marijuana could be removed for the most part with a one sentence law or state constitutional amendment:

"Cannabis grown in [state], sold in [state] to consumers legally residing in [state] with the intent of consumption in [state] is hereby not subject to federal intervention or regulation in [state] due to the 10th Amendment to the United States Constitution."

Generally I don't favor state cartels, but if that's what it takes to shut the DEA down, so be it!

[kkt]

There's still a lot of fundamentalists opposed to marijuana legalization.  Congress would have to repeal the federal laws against it, and it only takes a few people -- committee chairs, etc. -- to block passing a law, even if most Congressmen want it.  I'd be surprised but pleased if the federal laws were repealed within five years.  I'd be a little less surprised if it were moved to Schedule 2, so a doctor could prescribe it.

[kphoger]

I frankly don't care one way or the other on marijuana; I understand both sides of the argument.

I don't see how the NMSL went against the Constitution.  All sorts of federal laws exist in the interest of public safety (not that public safety was the reason for the NMSL), so what's the difference?