Court takes up privacy and power

Supreme Court hears case on selling driver's license data, potentially expanding states' rights.

Rebecca Shaeffer and John Britton both paid a high price as a result of easy public access to state motor-vehicle records.

Ms. Shaeffer, a young actress in Los Angeles, was murdered by a stalker who obtained her home address through a search of driver's license records. Mr. Britton, a physician at an abortion clinic in Pensacola, Fla., was killed after anti-abortion protesters traced his license plate through state driving records and displayed his home address on an Internet "wanted poster."

These and other horror stories prompted Congress in 1994 to pass a law barring the routine release of motor-vehicle records. Now, five years later, the law is at the center of a different kind of national debate over whether Congress overstepped its authority by passing a statute that prevents state officials from deciding how to handle the records they collect and maintain.

South Carolina officials challenged the the law, which bars the routine release of motor-vehicle records to make it as hard as possible for stalkers, criminals, telemarketers, and news reporters to obtain personal information surrendered to state officials on an application to drive a car or register a vehicle. They won at both the federal court and appeals court levels.

On Nov. 10, the US Supreme Court will consider whether principles of federalism embedded in the Constitution bar Congress from passing such a law.

"The question of what exactly can Congress impose on the states is still a live question," says Anne Hayes, who filed a friend-of-the-court brief in the case for the conservative Pacific Legal Foundation in Sacramento, Calif.

Specifically, the justices will examine whether the Driver's Privacy Act is a permissible exercise of federal authority under Congress's power to regulate interstate commerce, or whether it is an unconstitutional intrusion into an area of regulation that the Founding Fathers sought to reserve to the states under the 10th Amendment.

The dispute is one of at least four so-called federalism cases to be argued this year at the nation's highest court. Analysts see it as part of a broad trend - some call it a "revolution" - aimed at scaling back the longtime expansion of federal authority in Washington in favor of bolstering the rights and sovereignty of the states.

States' rights

In recent years, the same 5-to-4 majority of conservative justices has contributed to a growing body of case law supporting the concept of a government of dual sovereigns with the states and the federal government on a more equal footing.

Richard Seamon, a constitutional-law professor at the University of South Carolina, says he views the recent high level of activity in federalism cases over the past two terms as a "one-two punch" on behalf of states' rights.

"I can't see this term being as big as last term in terms of federalism, but it might come close," he says. "It will certainly give us an elaboration of how deeply entrenched this new federalism is."

In the South Carolina case, lawyers for the Justice Department argue that the law is a permissible use of Congress's power under the commerce clause because the state was selling drivers' addresses and telephone numbers to direct-marketers at a significant profit. The lawyers say this activity constitutes a direct form of interstate commerce and opens the state records to congressional regulatory authority.

Lawyers for the state counter that the federal law impermissibly treads on an area of exclusive state control.

Two prior Supreme Court precedents could play a central role in the case's outcome. In 1992 and 1997, the high court decided cases that established that Congress cannot pass laws that commandeer a state's legislative process or conscript state officials to enforce a federal regulatory program. But determining when that happens can be difficult.

Of four federal appeals court panels to consider the Driver's Privacy Act, two struck it down and two upheld it.

The case may turn on a determination of whether the law merely requires the states to comply with congressional mandates or whether it actually forces state officials to implement federal requirements.

"Such an obligation to comply with the substantive terms of a federal statute is not equivalent to a duty to implement a federal regulatory scheme," writes Seth Waxman, US solicitor general in his brief.

Lawyers for South Carolina disagree. "The [privacy law] consists of a command by Congress to the states," says Kenneth Woodington, senior assistant attorney general in South Carolina in his legal brief. "There is no question that the [privacy law] creates a federal regulatory program and forces the states to administer it."

In recent weeks, the administration has signaled a slight shift in its strategy in the case toward relying at least in part on the Constitution's spending-clause provision to defend the federal law.

Federal money to states

Under the spending clause, the federal government can allocate money to the states and can make the continued receipt of the federal money contingent on the state's compliance with certain federal mandates. This spending mechanism is a means for a state to waive its own sovereignty and accept federal jurisdiction in a particular area of congressional concern.

This spending-clause issue is considered by many legal analysts to be the next big battleground in the so-called federalism revolution. One key issue for the court to resolve, analysts say, will be how closely linked the federal dollars must be to any federal regulations.

It remains unclear whether the court will use the South Carolina case as a vehicle to establish new spending-clause rules. One option, analysts say, would be for the court to remand the South Carolina case back to the appeals court to examine the new spending-clause issue.

(c) Copyright 1999. The Christian Science Publishing Society

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