The Obamacare Case, .08 and Judge Simms

October 28, 2012 

So what might the Obamacare case have to do with Bibb County deputies letting Bibb Superior Court Judge Howard Simms drive off into the night of Sept. 22 after blowing .083? More than you might think. One implication of the Supreme Court’s ruling on Obamacare is that the 2001 change in Georgia’s “driving under the influence” blood alcohol content standard, from .10 to .08, is constitutionally suspect.

Let’s backtrack. Although much of Obamacare was upheld by the Supreme Court, Medicaid’s forcible expansion to the lower middle class was not. Twenty-six states, including Georgia, objected that the congressional spending power was being unconstitutionally used to commandeer the states to jump to a decidedly federal tune. The Court agreed that the Obamacare “deal” was unconstitutionally coercive to the states because they were threatened with loss of all Medicaid funding to the poor if the states failed to comply.

The states won the right to choose no Medicaid expansion to the lower middle class without risking loss of federal Medicaid funding to the poor. The states are considering what to do about that option now. It was the first time in history that federal spending power was held to have been used coercively.

Looking around with widened eyes after the Obamacare decision, we see other cases in which the spending power may also have been used unconstitutionally. The .08 standard for blood alcohol content is a case in point. In 2000, .08 was the standard in only 19 states, Georgia not among them, and the advocates for stricter limits had reached a roadblock in the great majority of states with higher thresholds.

Then those activists got to Congress and President Bill Clinton in late 2000 just before he left office. They passed federal legislation threatening independent-minded states with loss of highway funding if the states didn’t fall into line at the more stringent BAC level.

It wasn’t long before every single one of the previously unwilling states had tightened their standard to .08. Those states changed their standards despite long-prevailing arguments in their state legislatures that the .08 standard was too strict, would criminalize social drinking, and was unnecessary when a .10 standard was considered by many in law enforcement to be adequate to reach the cases of obviously dangerous impairment. It’s hard to see the majority of states’ quick, total capitulation as anything other than evidence of coercion.

This constitutional problem is not some technicality. For one thing, it creates political confusion about accountability. Federal politicians are effectively relieved of political accountability for the .08 rule, because it’s formally imposed as a matter of individual states’ laws, while state leaders are held accountable by the voters for something that’s not really their choice.

Congress may also be trying an end around the “enumerated powers” doctrine that says only states should wield general police power. Then there’s the enforcement problem that the apparent constitutional violation creates. Enforcement of a fundamentally federal rule is put in the hands of people like Bibb deputies who don’t answer to the feds. The added costs and hassle of enforcing the tougher standard that will catch more offenders are shifted from the federal government to overburdened states and localities.

With few in the chain of command in Georgia particularly thrilled about the .08 standard to begin with, opportunities will be greater in discretionary enforcement for discrimination against some, and favoritism of others, as seems to have occurred in the Simms case. And that’s bad in terms of general public respect for the rule of law.

In short, the whole .08 standard is a constitutional mess that needs cleaning up for lots of good reasons. Of course, Simms doesn’t have to challenge the constitutionality of the act himself. He’s off the hook in Bibb County for blowing .083, though the Judicial Qualifications Commission still has to deal with Simms admittedly driving after profoundly problematic levels of drinking and favoritism in enforcement invited by Simms, who called himself “Judge” instead of “Howard” to law enforcement; who claims to have insisted on driving home Sept. 22 instead of being driven home, overruling the suggestion of law enforcement presumably concerned about the public’s safety; and who still denies that any of those acts violated his judicial oath.

There are also questions about Simms’ rulings while on the bench. In one high-profile case just before his own most recent incident with law enforcement, Simms ceremoniously nailed an alcohol-impaired African-American driver with a surprising five-year prison term for hitting and killing an apparently-crack-using pedestrian who may himself have been weaving in the street that night. Can we be sure that Simms’ tough sentence in the case of that poorly connected defendant wasn’t influenced by Simms wanting to dispel persistent public suspicion that Simms had a blind-spot on issues involving alcohol?

Even if Simms survives the JQC process, he’ll face a duly skeptical electorate in 2014, which will have a hard time trusting the steadiness of Simms’ judgment.

Whenever Simms hangs up the judicial robe, though, his brush with the .08 standard does fairly highlight a fundamental constitutional problem with that standard in Georgia and 30 other states. I expect to become involved as counsel or amicus in cases that more forthrightly and appropriately challenge the .08 standard, as well as several perhaps-more-politically-correct cases in other settings in which Congress has used its deficit spending to push the states around.

The states, the people and even Congress could be reinvigorated by the Supreme Court tracing in more detail where the line lies between the states and the federal government. The time has come to stop Congress from coercively, unconstitutionally brandishing its over-used spending power.

David Oedel served as counsel to the state of Georgia in its constitutional challenge to health care reform, and was a primary advocate of the states’ winning Spending Clause claim, on which he has spoken and written nationally and internationally. He is a professor of law at Mercer University Law School.

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