Judging Freedom - Is the Department of Transportation based in the Constitution?

Episode Date: February 10, 2022

Transportation Secretary Pete Buttigieg unveiled plans to install more automated cameras nationwide to address a record increase in traffic deaths on the nation’s highways. Where is this department in the Constitution?See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Thursday, February 10, 2022. It's about 2.45 in the afternoon on the east coast of the United States. I'm having such a good time reading questions. The questions are peppered with very complimentary comments, and I'm deeply grateful for them. But I'm having such a good time reading questions from viewers. Now, this person, I guess, doesn't use his or her real name. The writer refers to him or herself as the crew chief. All right, crew chief. Here's what crew chief wants to know. You stated, where is the authority that allows for the Department of Transportation? You said that was a story for another time. We were talking the other day about the efforts of Secretary of the Department of Transportation, Pete Buttigieg, to use infrastructure funds to send

to the states and to tell the states that they had to spend that money on red light cameras. And I was pointing out how wrong the concept of red light cameras is. They're just a money grabbing gimmick by the manufacturer of the cameras and the local and state governments that install them. In New Jersey, shortly before he left office, Governor Chris Christie signed an executive order forbidding the use of red light cameras for the issuing of tickets. Now, the cameras are still there. So if there's an accident at an intersection, the lawyer can subpoena the film from the camera manufacturer or the folks who maintain it, and you'll get a film of the automobile accident. But you don't have to worry about getting a ticket in the mail issued to you by a computer because you can't cross-examine the computer.

In the course of that dialogue, I was saying, well, where's the authority in the Constitution for the Department of Transportation? There is none. But when the Congress established the Department of Transportation, I think we're back in the LBJ years now, they hung their hat on their favorite hook, which is called the Commerce Clause. So the Commerce Clause in the Constitution is one of the 16 unique discrete powers given by the Constitution to Congress. And it gives Congress the power to regulate commerce among the states. When Madison wrote that phrase, when he was the scrivener at the Constitutional Convention, to regulate meant to keep regular. So the purpose of the Commerce Clause was to make sure that commerce did move from one state to the next. Why would you need something like that? Well, because before the Constitution, the states had monopolies and tariffs, and commerce could move

from one state to the next, but it was impractical to do so. So if you were making wheelbarrows in New Jersey at $5 a wheelbarrow and you ship them to New York, New York would impose a $10 tariff. So you'd have to charge 15 bucks for your wheelbarrow, whereas your competitor in Manhattan could charge seven or $8 for his. Sooner or later, you'd go out of business because of that tariff. So the purpose of the Commerce Clause to keep commerce between the states regular was to allow the Congress to invalidate state tariffs. Unfortunately, Congress didn't stop there. Congress began writing laws about anything that affected interstate commerce. And so it is under that theory that Congress can regulate anything that affects interstate commerce, like the working conditions for the manufacturer of the wheelbarrow, the age of the people who put

together the wheelbarrow, the salaries that the wheelbarrow maker pays to his employees, all those things are now regulated by Congress because Congress took the view and the courts allowed it that the Commerce Clause permits Congress to write any law and regulate any behavior that affects interstate commerce. So they created the Department of Transportation, which does nothing but collect taxes and distribute money. The states maintain the highways, the federal Department of Transportation doesn't. Madison would be flipping in his grave if he knew that there's a federal department of transportation, because the whole concept of moving from one state to another is that you have an absolute right to do so.

You don't need the permission of the feds, and they have nothing to do with it. So not only is Secretary Buttigieg, in my view, wrong to spend federal dollars to pay for red light cameras, he's wrong to be the Secretary of Transportation. We don't need it. The states can regulate the highways in their own states. It's not a federal issue and the feds should stay the heck out. Judge Napolitano, judging freedom.