Bacon's Rebellion

Unconstitutional Power Grab

Reps. Oberstar and DeFazio ignore Tenth Amendment in push to stop states from using transportation PPPs

The Tenth Amendment reads that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." In short, the amendment explicitly states that the federal government is limited to the powers given it in the Constitution and that all other powers are reserved to the states. Those powers include setting public policy on how infrastructure is built, maintained and operated and covers various operational models that individual states can select depending on their unique needs, challenges and goals. However, two U.S. Congressmen clearly need a refresher course in the Constitution and the 10th Amendment.

Representative James Oberstar, the Chairman of the House Transportation and Infrastructure Committee, and Representative Peter DeFazio, the Chairman of the Highways Subcommittee, recently sent a letter to governors, legislators and public officials "strongly discourage[ing]" states from using public-private partnerships for transportation and arguing that these partnerships "are not in the long term public interest."

They followed this missive with a more recent threat to withhold federal highway funds if public-private partnerships fail to meet their — I mean, federal — standards. Indeed, Rep. DeFazio has gone so far as to say that he "will put an end to this [public-private partnership]."

Despite clearly violating the Tenth Amendment, this tactic is not new. Both the 55 mile-per-hour speed limit and 21-year drinking age were imposed under the threat of withholding funding. Furthermore, the Commerce Clause has been used by Congress and the federal government over the years to interject federal power on policy issues. But the Tenth Amendment makes it clear that, unless explicitly stated otherwise, state officials should have the ultimate power and authority to make decisions about their respective states. Our state elected officials can make their own judgments about how our roads are built and operated.

Fortunately, Virginia leaders are fighting this latest incursion on states' rights. Said House Speaker William J. Howell: "For more than 10 years the Commonwealth has used public-private partnerships to develop and operate our transportation network; it’s unfortunate that Congressmen Oberstar and DeFazio can assume positions of leadership without understanding how vital public-private partnerships are to states’ transportation policy and that they’d try to stop it on purely ideological grounds."

Furthermore, Transportation Secretary Pierce Homer disagreed with the Congressmen’s recent letter. In a recent speech, he noted that public-private partnerships have been "a major force in helping Virginia deliver more projects on budget, in shorter time frame, and with results that please the customer — those who use Virginia’s roads."

Elected officials from other states are fighting back too. Pennsylvania Governor Ed Rendell, who is considering leasing the state’s turnpike, has said that the congressional concerns are overblown. He further predicted that more public-private partnerships will take place because of the fiscal realities states face.

Even the American Legislative Exchange Council got into the fray. In a press release issued on June 14th, ALEC opposed the Congressmen’s efforts on Tenth Amendment grounds. They added that, "Congress should not dictate to [state governments] how they fund the construction of roads," and argued that "many states use public-private partnerships and believe they are the best way to relieve traffic congestion and save taxpayers money."

The fight is important for obvious reasons — most importantly, the federal highway trust fund is becoming increasingly inadequate to meet our nations’ infrastructure needs. A recent report by the Government Accountability Office suggests that it will be unable to fund the present limited program of federal grants to the states by 2009 — and a gas tax increase high enough to make a difference is unlikely.

Given this reality, it makes no sense to hamstring state efforts to supplement and leverage existing funds with public-private partnerships. Indeed, rather than meddling in state affairs and attempting to undo efforts to solve congestion and improve mobility Congressmen Oberstar and DeFazio should be looking at ways to help states address their transportation challenges — not standing in their way.





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