Monday, December 29, 2008

Weather Radios and the U.S. Constitution

Today's Indianapolis Star brings a story on a bill requiring weather radios in mobile homes failing in the U.S. Senate. Kathryn Martin, whose 2 year old son who was killed during an Evansville-area tornado in 2005, was a driving force behind the legislation. During the 2008 legislative session, the Indiana General Assembly passed a bill requiring the radios for new mobile homes sold in Indiana.

Martin said that she couldn't understand why the Senate couldn't pass such a "noncontroversial bill." Greg Corbin, a meteorologist at the National Weather Service's Storm Prediction Center, declared: ""I'll say unequivocally there will be lives saved if you put weather radios in mobile homes." Hmmm, is that the standard? Having a national speed limit of 10 mph will also "unequivocally" save tens of thousands of lives yearly. Does that mean we adopt such a law?

But this column is about federalism and the U.S. Constitution. State legislatures have the authority to pass laws unless the power to pass that law is specifically denied by the U.S. or the respective state constitution. (Unlike what some of my over zealous libertarian friends think, state laws, unlike laws passed by Congress, do not have to be authorized by a specific constitutional provision either in the U.S. or state constitution.) For our national government, i.e. Congress, to pass a law, that law must be based on one of the specific powers listed in Article I, Section 8.

Over the years, Congress has found ways to get around this requirement. One way is to stretch Congress' power to regulate commerce as a bridge to regulate activities not directly related to the commerce. That is how Congress applies the Americans With Disabilities Act, the Family and Medical Leave Act, federal discrimination laws, the federal minimum wage law and other national laws to private businesses. If you look at each of those laws, you will find that in the opening language is an indication that the law applies to businesses (usually which have at least a certain number of employees) that are involved in "interstate commerce." Previous court decisions have concluded that anyone involved in business is involved in "interstate commerce."

Passing the weather radio requirement for mobile homes would have required yet more dubious use off the interstate commerce provision to regulate private business. Here the proposed law is not aimed at the commerce of selling and buying mobile homes, but rather a safety issue.

While the Commerce Clause has been stretched far beyond its original purpose, I see no reason to stretch it to this situation. Tornadoes are not a problem in all states equally just as hurricanes are not. There is no reason to believe this is a situation where we need a national law to deal with the problem. Our Congress should focus on national, not local, issues. Martin brought a problem to the attention of the Indiana General Assembly and the legislature responded by passing a law. That is exactly the way the system was designed to work.


Sean Shepard said...

Of course, a lot of your "Libertarian friends" (over-zealous or otherwise) might agree that this kind of law at a state or local level could be legal, but is unnecessary.

Anyone who wants to and is concerned about their safety living in a mobile home can buy a weather radio (new or used I suppose).

The people who were concerned about this sort of thing, instead of forcing more laws and regulations maybe should have directed their efforts towards promoting (or *GASP* selling them [maybe even at a profit]) to the target audience.

OR, perhaps mobile home manufacturers (or even parks) could have found a niche in promoting that they included (or otherwise provided) a weather radio with purchase/rental of space.

There are always alternatives to the government sledgehammer. :-)

Paul K. Ogden said...


I would agree. I don't think such a law passed by the Indiana General Assembly, as opposed to Congress, is unconstitutional. As you correctly note though, just because a law is constitutional doesn't make the law a good one. For the reasons you cite, I would agree that the law is not needed. At some point people need to take responsibility for themselves.

varangianguard said...

First thing I thought of was, "who'll change the batteries on a regular basis?"

I'm assuming that these radios are battery operated, and once they are in the hands of the "consumer" it's up to the consumer to replenish the batteries.

I figure that the majority of the radios would languish with reduced or spent batteries soon enough. Out of sight, out of mind.

Perhaps a whole new bureaucracy could be formed with Cabinet level leadership to solve the "battery problem"? The Department of Citizen Handholding for the Prevention of Sub-energization of Household Emergency Battery Supplies.

Waste of time, money, name it.

I'd add something snarky about "overzealous" and "Libertarian" being redundant in the same sentence, but some "overzealous Libertarian" would probably take offense. ROFL.

Sean Shepard said...


some of us are just reasonably zealous. ;-)

In addition to the battery police we probably need someone to go around and knock on each person's door to ensure they actually turn the radio on anytime storm clouds threaten to gather.

And who is going to ensure they didn't sell theirs on eBay or something?

varangianguard said...

Excellent points, Sean.

Leslie Sourwine said...

I am surprised you didn't comment on the article by the Star pertaining to "IMPD will hire civilians to free up police officers. According to the article Peterson raised taxes to pay for 100 more officers. I wonder where all that money went? Taxes in Indy almost doubled for this venture but apparently the money after collection wasn’t put towards the project it was collected for.

Taxpayers need to be asking some hard questions about where their money is going. It seems that taxes keep going up and up and yet the important projects such as hiring more officers to combat crime isn’t being taken care of. I wonder if anyone who reads your blog has yet to contact Mayor Ballard to find out why Sheriff Anderson was successful in collecting close to a quarter million dollars to give to Marion County Jail II (CCA). Money I might add that wasn’t owed to this private jail according to their contact with the city.

In addition I wonder if anyone has spent time thinking about the amount of money the city is paying this private corporation, CCA to incarcerate non-violent criminals for months before taking them to trial. When CCA contracts with a city or state to provide incarceration they are promised that their facilities will be 95% full. It makes sense, to make a profit you need the bodies. So it makes sense to keep taxpayers in jail who are accused of DUI for over a year while waiting for trial.

Of course this isn’t possible without the help of the IMPD, prosecutors, and judges.
In the past year since the Police Complaint Center received the first complaint against IMPD and CCA I’ve learned a lot about your city and the taxpayers living there. I’ve learned that if you, the taxpayer send a letter to an IMPD officer informing him that you are going to seek civil action for the abuse you suffered at his hands, that the prosecutor’s office will revoke your probation. I’ve learned that Indy judges are more than willing to hold you in jail without bond or bonds so high many taxpayers are unable to pay to get out of jail. I’ve learned that the Public Defenders office has attorneys who fail to perform the job taxpayers pay them to do and as a result I believe there are many innocent people serving time in Indiana prisons. The most important thing I’ve learned is that if you are arrested and incarcerated at Marion County Jail II (CCA) and you have serious health issues that you could die from lack of medical care before your case ever makes it to trial.

As I prepare to upload to our inmate abuse website some of the information we’ve gathered in the past year I speculate how many Indy taxpayers will visit the site to read the information and then contact their city government and demand answers. How many more taxpayers will fall victim to the system and end up in Marion County Jail II for months before enough people get angry about the way their tax money is being spent and hold their city government accountable.

Downtown Indy said...

Shouldn't we be mandating that all TV's remain in a standby mode, ready to switch to Live Doppler Rad Viper Radar 9000 whenever the station sends it's emergency beep over the airwaves?

It's ridiculous. At some point we have to acknowledge that people are responsible for their own well-being.

Now maybe we could pass a law that says every pack of cigarettes has to have a disposable weather radio embedded in it. Then we'd know people will always have one that works. Sorry, now I'm stereotyping mobile home park dwellers.