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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June 19, 2007
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