The New Anti-Federalism

Does this remind us of something familiar?

Federalism is the theory or advocacy of federal political orders, where final authority is divided between sub-units and a center. Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area.

Oh yeah. this.

Amendment X — The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Somehow the spirit of the 10th Amendment seemed to me violated when the feds told California to take their new auto emissions standards and put ’em where the sun don’t shine because if states had the right to protect their own air — horrors! — poor li’l automakers would have their heads in a spin trying to comply with do as little as possible under each state’s regs.

The theory, as my layperson’s mind grasps it, would be that because regulatory power is granted to the feds, it is somehow prohibited to the states? Even when — as recent experience implies — the federal government practices a willful and callous disregard for human health and safety which it is supposed to regulate, states for some reason still have to bug off as far as their own citizens’ health and safety are concerned, because that’s the feds’ job, even if they don’t do it.

This theory reared its deformed head in regard to New York’s  law that human beings be treated as human beings on New York’s tarmacs:

Airline passengers stranded on the tarmac didn’t get much support Wednesday from federal judges who questioned the validity of New York’s “bill of rights” for travelers.

All three judges on a federal appeals panel expressed skepticism that New York or any other state should be allowed to impose new oversight of an industry already monitored by the feds.

The New York law, the first of its kind in the nation, requires airlines to provide food, water, clean toilets and fresh air to passengers trapped on planes delayed on the ground for at least three hours.

The Airline Passenger Bill of Rights was passed after passengers at Kennedy Airport were stranded on planes on Valentine’s Day 2007 for more than 10 hours with no food and overflowing toilets. The bill was upheld in federal district court in December and has been enforced since January.

Got any quotable quotes for us, Justices?

Judge Brian Cogan said New York’s law might lead to other states passing similar bills that would subject airlines to all kinds of requirements.

Judge Debra Ann Livingston agreed. “There is a patchwork problem in that every state should be concerned about this and probably would write different regulations,” she said.

Even though the panel hasn’t yet handed down a ruling, Judge Richard Wesley defended their comments. “Judges aren’t heartless people in black robes. Three judges must decide whether New York stepped over the preemption line,” said Wesley, who still sympathized with passengers saying the conditions travelers faced in 2007 were “deplorable.”

No, Mr. Wesley. These comments supply the very definition of what heartless people in black robes would say. May you and your colleagues on this bench find yourselves on a tarmac for 10 hours with no food, no water, overflowing toilets, and a surly staff who won’t allow you to move from your seat. I think you’d say more than “deplorable.”

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