Referring to the limited powers of government enumerated in the newly adopted U.S. Constitution, Thomas Jefferson once noted that “To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”
Unfortunately, the next two centuries saw government set out on a relentless conquest of the boundless fields.
But in just the last few years we seem to have finally caught sight of the border.
And one of my own neighbors, Rob Pohutski, was the latest in a line of citizens who have recently asked the courts to tell the executive and legislative branches: “That’s far enough!”
The particulars of Mr. Pohutski’s plight may seem mundane, but the implications for government power were profound.
In 1998 Rob’s basement was turned into an overflow retention basin for raw sewage when our city’s antiquated sewer and storm drain system proved inadequate for an unusually heavy (but by no means rare) rainfall. This is, unfortunately, a civic service unwillingly provided by all too many of us Allen Parkers, as well as many other homeowners in the metro Detroit area.
Rob had $10,000 in damages.
The city’s insurance company blamed God and refused to compensate him.
City officials disclaimed any responsibility at all — citing the old, common law doctrine of “Sovereign Immunity” (to which they have lately attached the less royal sounding appellation “Governmental Immunity.”) The notion here is that government should be held to same standard of accountability that society applies to children below the age of reason and mental incompetents, i.e., none at all.
Pohutski sued.
The judge in the case, the Honorable Edward M. Thomas, following a 1988 precedent, ruled that there is a “trespass-nuisance” exception to governmental immunity. And that raw sewage in the basement of a residence is both.
The city, after all, has a monopoly on sewer and storm drain services. It’s not as though Rob can take his business elsewhere. Therefore, held Judge Thomas, the city and/or its insurer bore responsibility for any damages caused homeowners by an inadequate system.
Recognizing the far-reaching implications of the case (consolidated with a similar one from Farmington Hills and certified as a class action), the defendants appealed.
The Michigan Court of Appeals saw no reason to overrule the trial judge. But on Tuesday the Michigan Supreme Court reversed their own 1988 ruling and remanded the case, requiring the plaintiff to prove that the city was actually negligent in its operation of the sewer system.
The Pohutski et al. vs. City of Allen Park is actually the third court case in recent years to have profound implications for imperious government powers long taken for granted.
The first was the 1995 Texas case, United States vs. Lopez, wherein the US Supreme Court held that the national Gun Free School Zones Act had finally pushed the “Interstate Commerce Clause” of the constitution past the breaking point.
The federal government simply had no constitutional authority to prohibit possession of firearms within 1,000 feet of every school in the country. Such legislation, the court ruled, was properly within the purview of state governments.
The fact that weapons possession near schools has nothing whatever to do with interstate commerce might seem self-evident, even to those of us who are not legal eagles. But from the middle of the 19th century until the Lopez decision, the Interstate Commerce Clause had been increasingly cited as authority for the federal government to issue dictates on virtually anything.
There was actually a 1942 case called Wickard vs. Filburn holding an Ohio farmer in violation of federal interstate commerce regulations for growing wheat to feed his own family and to use as silage for his livestock.
Now the Filburn family never ventured any farther from home than church on Sunday. And the wheat never left the farm at all, merely being used to fatten dairy cattle and chickens before any milk or eggs ever even made it to the local market.
Nevertheless, the federal government claimed jurisdiction over the wheat under the Interstate Commerce Clause because (are you ready for this?) the fact that Filburn grew his own silage reduced his costs of production and, therefore, the wholesale price of his milk and eggs. This, in turn, affected the price of Ohio produce generally — the effects of which can be assumed to ripple across state lines.
I am not making this up. The court ruled that even when growing and consuming wheat on your own property, you were engaged in interstate commerce. This ludicrously expansive definition was typical — and controlling. Until Lopez.
The next big blow to government omnipotence came last year in the State of Idaho vs. Horiuchi case that arose out of the infamous 1992 Ruby Ridge confrontation between federal authorities and the Randy Weaver family.
Lon Horiuchi was the FBI sniper who quite literally blew a mother’s head off as she was standing inside her family’s remote, mountaintop cabin holding nothing more threatening than her infant daughter.
The county prosecutor was so outraged that she filed manslaughter charges against the FBI agent.
Federal officials, following long-standing tradition, filed a Motion to Dismiss citing the “Supremacy Clause” from article VI of the U.S. Constitution that states: “…the Laws of the United States…made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby…”
The Idaho judge granted the routine motion.
But the Court of Appeals held that the FBI’s shoot-on-sight “rules of engagement” were unconstitutionally reckless. The sniper who killed Vicki Weaver could not be shielded from accountability simply because he was “only following orders.”
Although a newly elected county prosecutor dropped the charges anyway, the Appeals Court ruling still stands because the federal government, not wishing to risk having the precedent extended nationwide, opted not to take the matter up with the U.S. Supreme Court.
Unfortunately, Rob Pohutski’s challenge to the “King can do no wrong” posturing by local government sewer barons was unsuccessful.
The Michigan Supreme Court has ruled that even though local government has a monopoly on providing sewerage, extorting the money in the form of property taxes from homeowners to provide the service, the burden is on the “customer” to prove that any failure was the result of actual negligence.
How is that for a “boundless field of power”?
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More on constitutional law:
- Term limits redux
- Freedom of speech
- Selling us a sales tax bill of goods (add 6%)
- In memoriam: The Bill of Rights
- Keep your government even closer
- No census con
- Drunk with power
- Down the sewer
- Highway robbery in the dead of night
- Term limits — A baby step in the right direction
- Honoring Headlee
- Prohibition — No nobler the second time around
