Last week the Senate voted to withhold federal highway funds from any state that fails to conform its own state law to a congressionally "suggested" national standard regarding DWI. Specifically, each state would be required to lower its blood-alcohol concentration to .08. or risk losing federal funding. Texas, like thirty-three other states, has established its legal limit at .10. You can bet the farm that if the measure is passed by the House and becomes federal law, the legislature in Austin will yield to this so-called request at the earliest opportunity.

You should be concerned about this action for a reason that has nothing to do with drunk driving.

I offer no opinion as to whether the law should or should not be changed. It would seem that the lowering of the blood-alcohol limit would necessarily reduce accidents and deaths on the highways although some suggest this may not necessarily be so. The standard of .08 may in fact be "better" than .10. Nevertheless, what is disconcerting is not the merits of the decision but, instead, who made it. Such a revision to Texas law should be made by the Texas legislature in Austin only after a full and fair debate leads to the conclusion that it is the right thing to do. Instead, this state's DWI  law will be changed because the United States Congress has put a gun to the legislature's collective heads.

The .08/.10 argument has been going on in Austin for several years. Each term, a bill has been introduced to lower the limit. (Last session it was introduced as House Bill 133). Each time, however, the measure has failed. Why? Because Texans elected by Texans, rightly or wrongly, did not believe the change should be made for Texas. But that conclusion it about to become irrelevant.

If Congress wanted to change the law for each state, why didn't it just pass a federal law that dictates the change? That is, why force the States to make the change or risk losing federal funds? The answer is that Congress simply does not have the power to dictate the criminal law of a state. Although the federal government has become increasingly intrusive into our lives, its authority is still limited by the Constitution. Fortunately, that document does not extend Congress' power to rewriting the Penal Code of the individual states. That power is reserved to those states under the Tenth Amendment.

Nevertheless, Congress got wise a few years back and side stepped this little "constitutional problem". Instead of establishing federal law in areas that fall within the jurisdiction of the states, it simply made federal highway funds (which are projected to be $173 billion this year) contingent upon a state law change which is consistent with the desires of Congress. For example, in 1986 the Texas legislature raised the legal drinking age from 18 to 21 - without regard to whether it was an appropriate change. Instead, the lawmakers took the action because Texas simply could not afford to lose the money that flows from Washington. Note that Congress didn't establish a national drinking age because it couldn't. It did, however, understand that it could force its will on the States by hitting them right in the state treasuries.

Interestingly, no one seems to care that Congress does with the left hand what it cannot accomplish with its right. There was a brief debate about this action on MSNBC's The News With Brian Williams, but it involved a "state's rights" advocate versus a woman who was aligned with Mother's Against Drunk Driving. Hey, any position on the Tenth Amendment, Interstate Commerce, or Federalism will convincingly lose a debate  to someone armed with the statistics of the number of DWI deaths.

Let's face it, to lambaste Congress on this issue necessarily requires, for the sake of argument, to put aside the merits of the .08 law. But in this world of five second sound bites, not many people are willing to make such an argument and especially not members of Congress. The risk is obvious: in the next election, Congressman Jones gets hit between the eyes by an opponent who says Jones was "soft on DWI". No he wasn't. He just respected the rights of the individual states.

Public apathy on the issue may be based on the perceived merits of the DWI law change. That is, if the change is for the better, who cares which legislative body made the change? Well, you should. With all due respect to U.S. Senators Phil Gramm and Kay Bailey Hutchison and also U.S. Representative Charles Stenholm, I bet I can get State Representative Ric Williamson and State Senator David Sibley on the telephone with a great deal more ease. You clearly have more influence with Austin than Washington D.C.

Celebrate the lowering of the blood-alcohol limit to .08 if you so desire. However, just remember from whence it came. 

Barry Green is the District Attorney for the 271st Judicial District.