Thursday, May 26, 2011


“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
Federalist Paper 48; James Madison

black box
All airplanes are required by law to carry a "black box" (actually orange) which is a highly durable recorder that keeps track of communications and engine data for recovery after a crash. Now, the National Highway Traffic Safety Administration (NHTSA) wants to require those for cars, but who gave them the authority?

The US Constitution divides the federal government up into three sections, each one with its realm of power that it is sovereign over and the others cannot interfere with or duplicate. The Legislative branch creates law, the Judicial branch interprets law, and the executive branch enforces law. These areas are separate; legally the judicial branch cannot make law and the legislative branch cannot enforce law, for example.

The founding fathers separated things like this to restrain each branch from gaining power. If absolute restrictions are imposed on each, then they are unable to cross beyond a certain point. If one branch gained too much power, then the others could not check and limit it, and the liberty of citizens would be threatened or damaged. Allowing the legislative branch to both make and interpret law would give them incredible power over everyone's lives that no one could stop.

The agencies and bureaus within the executive department such as the FBI, the EPA, and the NHTSA are limited by being a part of the executive branch. They cannot create new law or interpret it, all they can do is enforce the laws that the legislative branch has passed and the judicial branch has examined, if necessary.

I say that they cannot, but in truth they should not is a more proper statement. They are prohibited by the constitution and morality from doing so, but that does not necessarily mean that they are incapable should they choose to ignore law and propriety.

The NHTSA wants to require all automobiles to carry a black box, and are expected to impose that requirement on all new cars built next month, according to Wired's Autopia blog.
The device, similar to those found in aircraft, records vehicle inputs and, in the event of a crash, provides a snapshot of the final moments before impact.

That snapshot could be viewed by law enforcement, insurance companies and automakers. The device cannot be turned off, and you’ll probably know little more about it than the legal disclosure you’ll find in the owner’s manual.

However, as Wired notes, if you have a car with an airbag, you already have such a device in your car and some states allow that device to be used in a court of law for suits and insurance claims. All states allow law enforcement access to that data with a warrant. GM has been installing these recorders in cars since the 1990s to gather data on crash and emergency response from vehicles.

The problem here is that the US Constitution does not permit the executive branch to simply declare new things that everyone has to do. That's properly a law and only the legislative branch is able to pass new laws. if a car company chooses to put something like this in your new car, that's their business, but if the executive branch orders them to, then there's no constitutional basis or power behind that order.

The Obama administration is fond of this kind of end run around the constitution, and it has been declaring new laws semi regularly for two years now. Sometimes those laws are vaguely based on existing law (such as the EPA using the Clean Air Act to declare carbon dioxide a pollutant), and sometimes its just based on the whim of the Obama administration.

This latest idea is one more step in the executive branch's desire to impose President Obama's vision of how things ought to work despite how the US Constitution orders that it should work. Whether or not its a good idea for cars to carry black boxes, an I can see the benefits, this is a job for the legislative branch to determine, not the executive.

But if there's one thing that you can say about president Obama its this: if he can't get congress to push his radical agenda, he'll just try to impose it through the executive department no matter how legal or constitutional it is. He's already being held in contempt by a federal court for this kind of thing.

*This originally ran at the Washington Examiner Opinion Zone.

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