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

Written by Howard Foster on Monday December 19, 2011

The National Transportation Safety Board (NTSB) has proposed a nationwide ban on cell phone use while driving, which strikes me as a good idea in principle. But like so many good ideas, we cannot judge it by its facial appeal. Moving beyond that, 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?