By Chad Dornsife, NMA Nevada Activist and Executive Director of Best Highway Safety Practices Institute
This post originally appeared as NMA E-Newsletter #542 on June 2, 2019.
Editor’s Note: This is Part 1 of what Chad half-jokingly refers to as his manifesto, written nearly ten years ago from a federalist point of view. This installment details the development of traffic laws in the United States and the origins of the government entities that oversee those laws, for better or worse. It is a history worth knowing, written by someone who has been actively involved in traffic law reform with the named agencies and the courts for most of his professional life.
Our Founding Fathers knew that the regulation of our nation’s transportation corridors (Article 1 § 8(7); Post Roads) along with commerce and national defense were indispensable to the general welfare of the nation, and these powers were not enumerated to the states.
In the 19th century, Post Roads came to embrace all related modalities, including the telegraph, railroads, waterways, etc.
Before travel became ubiquitous, and we changed the nomenclature of our nation’s “post roads” in the early 20th Century to roadways or highways, this constitutional authority nexus was raised from time to time, but for all practical purposes, it was dormant in the public’s consciousness.
The need for uniformity to achieve safety came to the fore in 1926 with the first efforts to establish a Uniform Vehicle Code (UVC), and in 1927 the Manual on Uniform Traffic Control Devices (MUTCD), but the realization of Eisenhower’s’ National Defense and Interstate System turned it into an imperative.
In 1966, in addition to Congress’ constitutional regulatory authority per Article 1§8(7), Congress in the Highway Safety Act of 1966 (P.L. 89-564, 80 Stat. 731) invoked the Commerce Clause to encompass this entire field to achieve roadway safety on any facility open to public travel.
In this Act, Congress assigned oversight to the Commerce Department and the former Bureau of Roads, et al.; in 1967 this new cabinet-level agency became operational as the U.S. Department of Transportation (USDOT). The reconfigured authority included the new Federal Highway Administration (FHWA) that was responsible for roadways and traffic control and the Manual on Uniform Traffic Control Devices (MUTCD); and the new National Highway Traffic Safety Administration (NHTSA) that was assigned drivers, vehicles and oversight of the Uniform Vehicle Code (UVC).
The “U” in MUTCD and UVC is the term “uniform,” which is implicit in all federal acts and regulations and adjudication standards per the Equal Protection Clause, US Constitution and Bill of Rights.
The Highway Safety Act of 1966, et al., as adopted by Congress, created a new paradigm for the nation’s traffic laws. Its phased-in mandates encompassed all of us; individuals, law enforcement, public entities, the courts, and the USDOT!
All means and instruments of travel, traffic control, and the exercise of police powers became a fact-based federally regulated field designed to be uniform in every aspect regardless of political boundaries, entity type or classification in the US and its Territories; subject to all constitutional protection therein. Any subordinate regulation must substantially conform to the same standards as the empowering law, including those regulating the actions of a federal agency per 5 USC 706. It is the responsibility of the USDOT that these mandates and individual rights remain unabridged; the agency was empowered to cause compliance.
Whether the USDOT acts or not, it does not abrogate the rights of the citizen, or the responsibility of the posting authority and the engineering practitioners to promulgate their laws and practices in substantial conformance with the US Constitution and Congress’ intent. Nor can the USDOT allow an inferior Authority in a federally regulated field to violate the mandates of the governing federal laws.
The Supremacy Clause invalidates state laws and federal agency administrative rules, MUTCD or UVC regulations that interfere with, or are contrary to the US Constitution and the intent of Congress. As such, USDOT (FHWA; NHTSA) is not empowered to abrogate or subvert these mandates, only enforce them.