Federal Takeover of Subways: Another Blow to Federalism

The Federal government’s approach to its proposed takeover of subway and light rail safety regulation is an all too common way it approaches problem solving: Identify a problem, identify a political solution, but the federal government in charge. Secretary Ron LaHood says as much based on statements reported in the Washington Post:

“Administration officials said they are responding to a growing number of collisions, derailments and worker fatalities on subways — and in particular to the fatal June 22 crash on Metro’s Red Line and failures in oversight that have surfaced in its wake. Those failures have been the subject of an ongoing investigative series in The Washington Post.

“After the [Metro] train crash, we were all sitting around here scratching our heads, saying, ‘Hey, we’ve got to do something about this,’ ” Transportation Secretary Ray LaHood said in an interview. “And we discovered that there’s not much we could do, because the law wouldn’t allow us to do it.”

“Metro spokeswoman Lisa Farbstein said the agency had not seen details of the proposal. “The bottom line is we welcome additional safety oversight with open arms,” she said.

This Administration has shown little tolerance for boundaries established by tradition or Constitutional principle. Perhaps this is because the President is a former law professor who taught Constitutional law; he knows how to get around the law to make the system work for him.

Subways are particularly noteworthy, as both a test case for the breakdown of federalism as well as setting the tone for how local governance will be handled by the Federal Government in the future. Most transit agencies, unlike Amtrak and airlines, are well within state jurisdictional boundaries (Washington, D.C. Metro being a notable exception). The Obama Administration will use its funding precedent–most capital costs for transit agencies are funded by the Federal Government–as the mechanism for taking over rail transit agencies. The trick will be trying to accomplish this, like highway funding, through incentives instead of direct mandates.

Interesting, virtually no one in the media seems to even understand the Constitutional principles involved. Intercity rail and airlines can be regulated by the federal government because they plausibly fall under the interstate commerce regulatory authority of the federal government. That doesn’t apply to the vast majority of rail transit systems, including those in Los Angeles, Denver, San Francisco, Dallas and even Chicago.

Yet, this shouldn’t be a surprise. Progressive political philosophies show little respect for governing principles that divide or limit the power of government. President Obama is not just a progressive politician, he’s also a populist. So, using the Federal government to address an identified political problems is consistent with an overall political philosophy, even if it isn’t consistent with principles of federal-state governance embedded in the U.S. Constitution.