Res Judicata: Where is the Authority For a Cell Phone Ban?

December 19th, 2011 at 8:51 am | 37 Comments |

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The National Transportation Safety Board (NTSB) has proposed a nationwide ban on cell phone use while driving, illness which strikes me as a good idea in principle. But like so many good ideas, troche we cannot judge it by its facial appeal. Moving beyond that, search one needs to ask, does the federal government have the authority to enact such a law? And if so, how will it be enforced?

The NTSB admitted it lacks the authority to impose such a ban. So for such ban to be imposed, Congress would have to enact it legislatively. Whenever we consider a new bill, we should ask, where does the Constitution authorize Congress to pass this? “The Constitution creates a Federal Government of enumerated powers. See Art. I, sec. 8. As James Madison wrote: 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.” United States v. Lopez, 514 U.S. 549, 552 (1995)(striking down the Gun Free School Zone Act because it was outside Congress’ delegated powers to enact)(internal citation to The Federalist omitted).

Nancy Pelosi was asked where the Constitution authorized the Obama Health Care Law and shrugged it off with a contemptuous “are you serious?” I sense that most liberals read the text of the Constitution about as frequently as the Yellow Pages. She also didn’t answer the question which is so troubling to many federal judges that the Supreme Court has found it necessary to grant 5 hours of oral argument to consider it. So let’s seriously consider where the document authorizes Congress to enact a cell phone driving ban.

I know that some readers will give this the back of their hand (or mouse) by reasoning that the founders didn’t know from cell phones, so any such inquiry is an utter waste of time. Wrong. The founders didn’t know from cell phones, but they wrote a timeless document. Nobody proposes that the three branch form of government created by the Constitution should be scrapped because that formula is antiquated. So why should we respect the delegation of powers to Congress as enumerated in Article I? Is the idea of enumerated powers dead? Certainly not, and in Lopez the Court struck down a law which made good sense because because it respected the original intent of Article I.

The only conceivable provisions that would enable Congress to pass such a law are the “general welfare” clause and the commerce clause. The Supreme Court has held time and again that the general welfare clause limits what Congress can do. It is not an independent grant of power. So Congress cannot pass a law to benefit one group while burdening another group of citizens. Such favoritism is not in the “general welfare” of the nation. This does not help advocates of a federal cell phone ban.

In analyzing the argument that a law falls within Congress’ commerce power the first question is whether the ban “substantially affects interstate commerce.” We are not analyzing the purchase of the phone itself, or the purchase or a service contract with a service provider like AT&T. Those acts probably have enough of an effect on interstate commerce to fall within the power of Congress to regulate.

The fact that communications are regulated by a complex FCC scheme does not empower Congress to enact a driving ban because the act of using a phone while driving would not “undercut” that regulatory scheme, which is the test employed in Lopez. If the regulation of telecommunications providers were enacted to promote the safety of phone users, then the argument for such a ban would be much stronger. But it is not. FCC regulation of telecommunications exists to establish free competition in the industry and protect consumers from monopoly power, not to save them from killing themselves while driving.

I concede that the legal argument would be different in cases where drivers cross state lines. There, they are “using the instrumentalities of interstate commerce,” i.e., highways. But even there, the regulation of cell phones while driving is still better left to the states to regulate. To be clear, I favor banning cell phone use while driving (and possibly other distracting activities, like consuming food, drink, and reading maps). The question is, which level of government should enact the ban? This should be addressed at the state or local levels of government.

First, they have no constitutional constraints. The Constitution does not limit the power of states to pass such laws. Second, they are able to enforce the ban. A ban is no good if it cannot be adequately enforced. For the federal government to ban interstate driving while using a cell phone, it would have to deploy the FBI onto the highways to write traffic tickets (or create a new federal police force to do so). The FBI is already stretched too thin to be writing traffic tickets. Creating an entirely new federal police force to be deployed all over the country is too expensive and inefficient. Moreover, the feds would only have power to write tickets to interstate drivers. A driver on a highway traveling only a short distance without crossing state lines would be exempt from the federal ban.

The state and local police are already cracking down on cell phone use in most states and will enforce those laws with renewed vigor as the death toll from driving-while-texting mounts.

So the question becomes, why should the NTSB even propose a ban it is powerless to enforce? Republicans should answer this arrogation over state responsibility. Mind your own affairs, Secretary LaHood. Don’t you have enough in your jurisdiction already?

Recent Posts by Howard Foster

37 Comments so far ↓

  • sparse

    “So Congress cannot pass a law to benefit one group while burdening another group of citizens. Such favoritism is not in the “general welfare” of the nation. This does not help advocates of a federal cell phone ban.”

    Um, people who text while driving are not a class, especially not compared to people who are also on the road with them.

    Some of this incredibly shallow reasoning could be used to argue that our interstates should have all the lines erased in order to satisfy the author’s reading of the constitution.

  • baw1064

    The NTSB has no regulatory authority to do anything at all. All they can do is do make a non-binding recommendation. This often happens in the investigation of some plane crash–the NTSB issues a report, makes some recommendations as to how practices or regulatory policy should be changed–and often those recommendations are never adopted. In any event, did the NTSB report actually say that the Federal Government should ban texting and cell use? As opposed to recommending that states do so?

    A better column topic would be whether the Federal government should have the power to mandate speed limits or drinking ages–they do so by threatening to withhold federal highway funds is the states don’t tow the line. I actually agree with you that this is an instance of federal overreach. But there’s no point in getting worked up over a recommendation that has no legal standing.

    Drivers paying too much attention to their cell phone and not enough to traffic do scare the heck out of me. But that should be dealt with at the state level.

  • dante

    If they *really* want to, they’ll incentivize it just like they did with the 55mph speed limit and the 0.08% DWI/DUI; if states want federal transportation and highway dollars, they’ll have to implement the cell-phone ban.

    By the way, you’re idea that the Constitution is a “timeless document” is hilarious. We’ve changed it (Amendments), we’ve discarded parts of it (slaves are NOT worth 3/5ths of a person anymore), and we’ve decided that there are definitive limits on aspects where the founders did not anticipate technology progressing. The right to bear arms, for instance, does NOT cover fully automatic weapons, or shoulder fired SAMs. The courts have also waded in with regards to rights of privacy and cell phones (or any phone records), and will continue to do so as technology continues.

    The idea that the founders of this country knew EVERYTHING and could anticipate any and all problems that this country might face is ludicrous and one of the main drawbacks of the Republican party right now.

    • baw1064

      The Air Force is unconstitutional. So if NASA. So is the FCC. If the Framers had wanted the Federal government to fly military planes, explore space, or allocate the electromagnetic spectrum, they would have said so!

      • kuri3460

        People basically only care about the constitutionality of something when they oppose it (i.e. Obamacare).

        Common sense trumps the Constitution. The Founders knew that, and I suspect most reasonable people today do as well.

        • dante

          Also, ask a Strict Constructionist/Libertarian how they feel about the 16th Amendment… Apparently only some parts of the Constitution are held sacrosanct, the rest should be revised/done away with/etc.

        • Nanotek

          “People basically only care about the constitutionality of something when they oppose it.”

          + 1

          I missed Foster’s analytic outrage over the new NDA’s indefinite detention of American citizens in the USs, DOMA (which overwhelms state law and violates the Full Faith & Credit clause), drug laws that overwhelm state laws, the creation of the Air Force, etc.

          I don’t take seriously people who complain only about laws they don’t like and give a wink-and-a-nod to those they do.

          that said, I don’t think anything should trump the Constitution … the national government is, in theory, one of enumerated power and the question of where the authority for a national law is derived always seems fair.

          balconesfault’s comment below — conditional federal funding — renders Foster’s entire piece immaterial

    • balconesfault

      If they *really* want to, they’ll incentivize it just like they did with the 55mph speed limit and the 0.08% DWI/DUI; if states want federal transportation and highway dollars, they’ll have to implement the cell-phone ban.

      Yep. My first thought was “is the author SO clueless as to not realize that the DOT will just use highway funding to push this”?

      Then I remembered that this was the author/lawyer who didn’t even check his building contract before signing a lease.

      • Solo4114

        Is he that clueless? I don’t honestly know, but I doubt it. This stuff is covered in the basic Constitutional Law class that all first year law students take. Congress would handle this exactly as they have:

        - raising the drinking age to 21.

        - setting a national DUI at 0.08% BAC.

        - setting a national speed limit of 55 mph.

        - seatbelt laws.

        In the most narrow sense, the author accurately states that a true ban on cell phone usage is outside of Congress’ authority. Congress lacks the police powers to implement a true out-and-out federal ban. Instead, Congress has “the power of the purse.” You want the dollars, you implement the law in your state. Want to tell Congress to shove it? Fine. No highway funds for you.

        My objection to this article is as follows.

        The issue the author raises and subsequently strikes down is…not actually the issue at hand. If Secretary LaHood is advocating that Congress actually pass a low that exercises police powers to criminalize or otherwise penalize — directly at the federal level — talking on a cell phone while driving, then fine. The argument as stated is worthwhile. However, even in that case, it still ignores the basic constitutional power that Congress retains to address such an issue.

        So, either the author is completely ignorant of a pretty basic concept in Constitutional law (which I highly doubt), or the author is simply framing an argument to create a debate where no debate exists. What’s worse, by completely ignoring the issue of Congress not actually banning cell phones, but rather using its entirely constitutional powers to condition receipt of federal funding on implementation of state laws, the author’s words would act merely to inflame the passions of those already incensed about government regulation run amok.

        It’s the either willful or casual disregard for the precise use of the language employed (and the necessary legal arguments that would arise from precise language) with which I take issue. I don’t expect the general public to understand the finer points of Constitutional Law. I do, however, expect the author to accurately reflect that law so as to fully educate the general public on the point.

        Regardless of one’s ideological and political leanings, what I respect about this site is its reasonable and forthright approach to discussing issues, while still maintaining an undeniably conservative tone. Issues are framed in conservative terms, yes, but they’re done so fairly and in an evenhanded way, at least when this site operates at its best. But an article like this, even while it is factually accurate, still only tells half the story by creating an obvious straw-man argument. Moreover, by only telling one half of the story, it creates the likelihood that the public will (A) remain ignorant of the rather critical other half of the story, and (B) will therefore hold inaccurate views of the issue. If you’re seeking to raise the level of debate in this society, this is a rather poor way to do so.

        Perhaps a follow-up article is in order, then.

  • sparse

    “If the regulation of telecommunications providers were enacted to promote the safety of phone users, then the argument for such a ban would be much stronger. But it is not. FCC regulation of telecommunications exists to establish free competition in the industry and protect consumers from monopoly power, not to save them from killing themselves while driving”

    “FDA shares regulatory responsibilities for cell phones with the Federal Communications Commission (FCC). FCC certifies wireless devices, and all phones that are sold in the United States must comply with FCC guidelines on RF exposure. FCC relies on the FDA and other health agencies on health and safety related questions about cell phones.”

  • Reflection Ephemeral

    This would be a solid B- on a 1L con law exam.

    Congrats on your best effort to date.

  • Graychin

    Sophistic twaddle.

    I’m sure that the Feds can find a Constitutional way to get cellphone use regulated by all the states. For example, it could be tied to Federal highway funds, as we do with states setting their legal drinking age at 21.

  • JohnMcC

    This sounds so much like the correspondence I have exchanged with my TeaParty-affiliated family members. The foundation of Mr Foster’s thinking is that the Constitution is equivalent to Holy Scripture. The Founder’s did not know they were divinely inspired but our modern so-called-conservatives have decided that they in fact were. Very shallow thinking is the norm of this narrow constituency.

    As I assure my kin, we have re-education camps prepared that will help them so much!

  • SerenityNow

    If all else fails there is always “promoting the general welfare,” no?

  • ConnerMcMaub

    “I sense that most liberals read the text of the Constitution about as frequently as the Yellow Pages.” – unsupported insults, I stopped reading after that, if that’s the quality of your argument.

    • LFC

      Is this is compared to right-wingers who read the Constitution but simply blank out when reading parts they don’t want to know about like “a well regulated Militia, being necessary to the security of a free State…”?

  • Rob_654

    For people who fear the government telling them they can’t talk on a cell phone while driving, how about if we just do the following:

    1) Drastically increase the penalties if you are talking on a cell phone and are in an accident to include jail time even for a accident with minor injuries – and if you someone dies there is some mandatory prison time with huge financial consequences.

    2) How about if we take the threat of physical punishment and put it on the table?

    There – you can still talk on a cell phone but you’ll wish you hadn’t if you injure anyone…

  • Houndentenor

    Since the highways are policed by people working for the cities, counties and states, it makes no sense to pass a federal law banning cell phone use while driving. That should be left to the states. The federal courts should not be prosecuting traffic violations. It just doesn’t seem practical unless there is an interstate issue involved.

    At the state level, if we cannot ban cell phone use, how can we ban drunk driving. Studies have shown the response time of someone talking on the phone to be about the same as those who are intoxicated. How can one be legal but not the other?

    I’m fairly libertarian on matters like this, but I draw the line at behavior which endangers me. You have the right to be an idiot. You don’t have the right to kill me while being an idiot.

  • armstp

    Are seatbelt laws a federal “mandate”?

  • budgiegirl

    how dare they mandate that i cannot drive while intoxicated too! that’s my choice!

  • RLHotchkiss

    The Interstate highway system in the United States was built for two reasons. One reason was to facilitate interstate commerce. The second was to facilitate for the national defense. Numerous elements of the interstate system are designed to facilitate the movement of troops and military equipment.

    A distracted driver who causes a traffic fatality could be viewed as an issue for state and local government. But a distracted driver who causes a twenty car pile up and prevents a military response to terrorist hostage situation like when rebels in Russia took control of a theater would be an issue of defense. Ditto a distracted driver that caused the closure of a major highway preventing the evacuation of a city that had been the site of terrorist attack using a dirty bomb.

    The military certainly could completely close the interstate system to civilian traffic. If they completely close the system to civilian traffic then they certainly could amend that closure to allow those without cell phone devices.

    On a less dire note removing the bodies and wreckage associated with distracted drivers from the interstate delays which severely effect interstate commerce. You can cavalierly dismiss the effects on interstate commerce but if you are transporting fresh seafood, fresh flowers, organs for transplant, biological samples, or overnight packages hours count. I remember reading the huge sums of money that every suicide who throughs themself in front of a train on the underground costs. Imagine how much more an accident which closes multiple lanes of the a major freeway costs to companies engaged in interstate transport. The fact that that the interstate system is set up to be policed by the state local governments doesn’t mean that it has to be.

    In the end the either the constitution is or is not a suicide pact. Allowing major industries in the United States to die, or military transport to be slowed because the government will not keep the highways free of unnecessary accidents is much more suicidal than trying terrorists in New York.

    The freeways belong to the military and interstate shipping companies. We just drive on them because we are allowed to. It is a privilege that could be revoked at a moments notice.

    • Solo4114

      The thing is, there’s no need to refute the author’s original point. Even if you accept it, the “ban” can still go into effect because it’s not — and never would be — a true “ban” at all. You’d simply deny the states a substantial amount of federal dollars if they fail to implement a state ban within X amount of time.

      In the law, there’s often the “legal” answer and the “practical” answer. Legally speaking, it’s unlikely that Congress could institute a true “ban.” But the matter is (barely) academic at best. Congress most certainly can “strongly encourage” the states to implement such a ban through entirely constitutional means. Practically speaking, the scenario envisioned by the article would never come to pass, regardless of the legalities surrounding it.

      The trouble is, if and when such a law is passed, people who have read a piece like this (which either intentionally or thoughtlessly neglected to raise the obvious scenario of a law akin to the drinking age laws) will point ignorantly at the law and say “BUT THAT’S UNCONSTITUTIONAL!!! I READ AN ARTICLE THAT SAID SO!!! Congress is out of control!!”

      Like I said, I think a follow-up is in order. One that, for example, makes mention of South Dakota v. Dole, 483 U.S. 203 (1987).

  • valkayec

    Where does Foster get this stuff? I listened to the original press conference in which the spokeswoman for the NTSB recommended a ban. However, she did not state the federal government enact a ban; her words implied the various states enact a ban. As she noted in her speech, the data showed that using cell phones while driving caused drivers to be mentally distracted which led to many more accidents. Therefore, in fulfilling the role of disseminating information from its data collection and in educating the public and states, the department was making a recommendation based on data. Not a directive or promoting a federal law.

    As for the whole federal policing bit in the last paragraph, it’s utterly hysterical. Foster has ridden the slippery slope all the way down to a mud hole. Great heavens!

    It seems that since the ’08 election, any time the administration – an agency or a person – makes a recommendation or proposes anything (like eating more healthy foods or recommending kids get more time outdoors to play), suddenly some Republicans begin screaming about socialism and federal over reach and lack of Constitutional authority. Reason and rationality go completely out the window in their attempt to demonize this administration as some socialist monster about to ruin the nation and throw out the Constitution. Projection perhaps on the part of the GOP? From what I’m seeing during this 2-year election season, it’s the GOP itself that is undermining the Constitution and the separation of powers. Perhaps Foster should be more afraid of his own party.

  • mlindroo

    > Nancy Pelosi was asked where the Constitution authorized
    > the Obama Health Care Law and shrugged it off with a contemptuous
    > “are you serious?”

    Indeed! And Foster’s article is BS nonsense from start to finish as well.
    The Constitution simply means what a 5-4 majority of Supreme Court justices believe.

    The Founders knew nothing about cars, cellphones or universal health care. Who the hell cares what a bunch of long dead people who believed in “three fifths of a person” etc. think anyway? So all this judicial hair splitting is useless.


    • Houndentenor

      She should have asked where in the Constitution was the authority to pass Medicare Part D.

      • Rillion

        Yes, I am sure there is nothing in the Constitution that allows the Federal government to spend money (which is what Medicare Part D does, spends money on drugs for seniors).

  • chephren

    How would phoning/texting while driving be enforced? A whole lot more easily than the laws against marijuana, which cost $Billions annually to administer.

    The other day, I was driving along on a busy street, safe in my lane, below the speed limit, when a car ran through a stop sign on an intersecting side street and turned into traffic in front of me. This driver cut me off and nearly drove me into oncoming traffic. I slammed my brakes, recovered, pulled even with the errant car and honked my horn. The woman behind the wheel paid me no mind – she was too busy texting, or dialling a number on her cell. I drove on and watched in my rear view mirror she drifted into another lane. Cars honked and flashed their lights, to no effect.

    This sort of thing happens all the time. Driving is dangerous enough without morons making it worse. Phone use behind the wheel is as bad as drunk driving. Ban it, fine the miscreants to the max and impound their phones.

  • Baron Siegfried

    My suggestion has been to put a strobe on the top of every car that flashes whenever a cell device is in use inside the vehicle, just to alert everyone around you that you’re freaking dangerous. It also makes it easy for the cops to spot you if you’re driving erratically, and I don’t have a problem ticketing dangerous drivers in the least.

    All fines and penalties are doubled if you are ticketed for a moving violation while using any handheld electonic devices, tripled if you cause an accident, and becomes a felony if you kill someone while texting. And given the immediate availability of cell records, there’s no hiding the fact you’ve been doing whatever . . .

    If you have to communicate from your vehicle, use a hands free speaker phone or Bluetooth headset. But anything in your hand that’s competing for your attention is too dangerous to be using while driving.

  • drdredel

    Many great points and obviously the crux of the posted article’s argument is too idiotic to even bother addressing, but here’s something to consider.

    Multiple studies have now shown that, contrary to common misconception, it’s the actual having of the conversation that renders the (average) driver distracted to the point of rivaling a blood alcohol level of .08, rather than the holding of the phone to one’s head (which has prompted all sorts of laws relating to the necessity of some sort of hands-free device). Interestingly, the studies show that having a conversation with someone who is IN the car with you is not distracting at all, and in fact, they wind up being helpful in alerting you to various hazards that you may have otherwise not noticed.

    In any event, given the amount of money that has been spent on hands free devices (especially the very VERY popular bluetooth speaker/microphone systems that are now built into new automobiles and let you voice dial and speak to people whose voices are piped right through your cars’ speakers) the notion of policing this is basically academic. It is simply not possible to know who is speaking on their phone and who is singing along with their radio.

    Sure, you can ticket the occasional imbecille who you can physically see texting or dialing or holding their phone, but that sort of behavior is very rare compared to the vast majority of users who are simply speaking.

    On the positive side, it would appear that traffic fatalities in this nation have held at a constant 40,000(ish) for several decades, even with all our advancements in safety technology, which means that people adjust their driving to be just a bit more dangerous to compensate for the measures they’re given to be just a bit more safe.

    • Solo4114

      I would expect that this would be “policed” not at all, but rather used to compound damages in any lawsuit, or to allow for potentially tougher charges in any prosecution or administrative sanctions, if it could be proved you were talking on the phone or texting at the time of or very near to the incident in question.

      So, it wouldn’t actually be policed in any proactive way, but the theory would be that the existence of the laws and punishing those who do get into accidents while texting/talking on the phone would be a deterrent to other drivers.

  • Churl

    So, if talking on a hands-free cell phone in a car is dangerous, why is it not equally dangerous for a driver to converse with a passenger? Should we not then ban all conversations in cars?

  • Rillion

    Wow really? I am sorry you wasted your time writting this article. You could have done something productive with that time instead. Congress will get the authority to pass this law from the same place it got the authority to set speed limits and make 21 the national drinking age. It simply makes receipt of Federal Highway funds contingent on a state passing and enforcing the ban. How can you not figure that one out?

  • smajor

    “Mind your own affairs, Secretary LaHood. Don’t you have enough in your jurisdiction already?”

    It’s always nice to end with something to reveal to the readers where you are really coming from. If you had started with this line, I would have known better than to keep reading.

  • dfzff

    The author goes on at great length about how the NTSB, or Congress, may not impose a nationwide ban on cell phone use while driving, calling on Republicans to “answer this arrogation over state responsibility. Mind your own affairs, Secretary LaHood. Don’t you have enough in your jurisdiction already?”

    To which one has ask, where did the NTSB propose that action for itself, Congress or any other Federal authority?

    Here’s the NTSB official press release –

    It brings to question whether the author read this first before constructing this as an issue of Federal vs State powers? The extent of Federal vs. State authority is a 220 year old hot topic and one we all should eagerly participate in. However, in this case, the NTSB is calling on the STATES to take action. I see no mention of recommendation for Federal action.

    We look to this forum to get well-thought and articulate commentary on important things, not to play the provocateur to stir up the faithful into a crusade over a false issue. There’s plenty of that already out there. Perhaps a little more editorial review is appropriate to keep the forum on task?

    • baw1064

      Furthermore, the NTSB’s role is limited to investigating accidents and making recommendations for safety improvements–it has no regulatory authority. Even in cases where Federal jurisdiction is clear (commercial air travel, for instance) the NTSB has no power to make its recommendations stick. Its opinions carry no more legal weight than Howard Foster’s or mine.