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Bypass mail bill could violate U.S. Constitution

Posted: November 17, 2011 - 10:40am

Sen. Lisa Murkowski asked the rightquestion: Can the federal government simply force the state of Alaska to pay for the U.S. Postal Service’s bypass mail system?

The answer from the Congressional Research Service reflects what many suspected: The make-Alaska-pay provision is almost certainly unconstitutional.

Yet the U.S. House Committee on Oversight and Government Reform approved the provision at its Oct. 13 meeting. “The State of Alaska, on an annual basis, shall make a payment to the Postal Service to reimburse the Postal Service for its costs in providing Alaska bypass mail service ... ,” according to the committee’s proposed legislation, H.R. 2309.

Really? The U.S. Congress can simply order Alaska’s state government to pay the bill?

The bypass system allows businesses to ship 1,000-pound pallets of food and other items from Anchorage and Fairbanks to Alaska’s Bush communities at parcel post rates. The Postal Service dispatches the material to qualifying air carriers on a rotating basis, but the shipments “bypass” postal facilities for the most part. Air carriers are reimbursed at a variety of rates, depending on which leg of the journey they cover. The total paid to air carriers vastly exceeds the postage collected on the goods — by about $70 million.

Murkowski asked the Congressional Research Service to review the House committee’s effort to make Alaska cover that difference. The nonpartisan agency came to a common-sense conclusion.

“(The) mandate that the state of Alaska pay the cost to the Postal Service of providing Alaska bypass mail arguably may violate the 10th Amendment of the Constitution by ‘commandeering’ Alaska to enact a law appropriating its own funds to pay the amounts assessed,” the research service said in a Nov. 8 memo to Murkowski.

The 10th Amendment clarifies that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Section 8 of the U.S. Constitution states that Congress, not the states, “shall have Power ... to establish Post Offices and post Roads.”

So it’s clear Congress doesn’t have the authority to require a state to operate even a portion of the postal system.

The research service memo summarized relevant Supreme Court decisions. In one case, the court “observed that the Framers ... chose a Constitution that conferred upon Congress power to regulate individuals, but not states.”

“The court acknowledged that the federal government may encourage states to regulate in a particular way or hold out incentives to influence their policy choices, but held that it may not coerce or compel states to take action,” the research service observed (emphasis in original).

The research service did offer one legal argument that might support the mandate. The Supreme Court has upheld federal “nondiscriminatory taxes or user fees to support federal programs that benefit a state.” For example, Massachusetts had to pay a federal registration fee for state-owned helicopters.

However, it’s hard to argue that bypass mail primarily benefits “the state of Alaska,” as a government entity, the research service noted. The beneficiaries are mostly the users who ship materials. The state of Alaska doesn’t even have a formal role in the system — it’s all run by the Postal Service, the air carriers and the U.S. Department of Transportation.

A Senate postal reform bill, which passed out of the Homeland Security and Governmental Affairs Committee last week, does not contain the make-Alaska-pay provision, thanks to the efforts of Murkowski and Sen. Mark Begich.

Congress does have a choice here. If it believes the bypass mail system is too costly, it can pass legislation to curtail or even cancel the service. However, the members of Congress pushing this issue don’t want to be blamed for the economic trouble it would bring to rural Alaska, so they’re trying to both keep the program and make the state pay for it.

That option shouldn’t be in their toolbox, though. Their only options are to keep, eliminate or cut back the bypass mail program. If Congress curtails it, then we Alaskans could decide whether to pick up the pieces somehow. But to simply order us to pay the Postal Service’s bills would be an abuse of federal power.

— Fairbanks Daily News-Miner,

Nov. 13

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BigRedDog
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BigRedDog 11/21/11 - 06:56 am
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Cheaper than Roads?

It's hard to see why the powers that controlled Alaska earlier in our Statehood determined in their wisdom that we didn't need roads connecting our vast State. Another entire generation has lived under the penalty those of those mistaken policies. Our rural Native population has been cheated out of their chance to prosper through the commerce these roads would bring. I don't mean just cheated a little I'm talking ripped of from the get go. Held in check bye a system that road blocks development and self help based economic development. Genacide via isolation is the result of this policy. Our Native Corporations should all stand together and say " Screw you and all your handouts we want a road!!" Then they can have some choices as to what part of their great resources to develop. Isolation has stopped economic growth right in it's tracks and made it so difficult to have a life that many of our young have been overcome with this great oppression and turned to suicide. The lack of hope and opprotunity is having to great a cost on our young population. It is time for a change in these policies. Gov. Parnel has mentioned a Road to Nome which sounds great, but a Road to Bristol Bay would get more bang for the buck!! But in the end, the deal for bye-pass mail is just compensation for not building the needed Roads. Now if you want to take bye-pass mail away we can really screw our rural population right into the old corner. It's just like the Corporations owning vast land holdings but individual natives only small home sites in isolated villages. This stops any real chance that they could sell or lease some of their own individual property to make a grubstake or starting money for personal needs. Cash capital for economic investment in local infrastructure that would produce jobs through commerce does not exist. It's like holding a population of people at ransom for their daily needs at the expensive end of a long supply chain, with absolutely no choice or alternative. Now somebody is telling us we can't build a road to Bristol Bay because Jimmy Carter placed a few million acres of wilderness in the way. Now the perceived social value of National ownership lays roadblocks to our prosperity in a free country. Can't nobody use that land but we all own it. This idea is great and works well for preserving natural attractions like the Grand Canyon ,Yellowstone, and the Redwoods. But using this policy to lock up access to millions of acres of State land selections should be outlawed! Yes we as citizens should be able to say we want to have access to the land our forefathers fought to keep free. What is freedom anyway if we are locked up in an ever decreasing land base that keep the Bankers rich! When there are millions of acres of ground around to force a young couple to pay 25K to 50K for a lot to build a home is robbery. We have a real nice national forest along the inside passage for our tourist to see but our children can't afford a 2x6 to build a house. 300 homes in Ketchikan go up for sale because somebody decides to make a National Forest half the size of California roadless. Give me a break, that ought to be mismanagement of my Natural resources to not harvest a mature forest is like wantant waste. That forest is just going to rot in place or burn up like 26 million acres of our national forest did last year through the use of the roadless policy. If this is national forest it should be harvested to the betterment of our nations needs. How many billions of dollars in national highway funds has Alaskan been cheated out of by isolating our rural population? Bet it's enough to o to Nome and Bristol Bay.

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