Bypass mail bill could violate U.S. Constitution

Sen. Lisa Murkowski asked the right question: 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.

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.

11/23/2011 - 12:00pm