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Constitution Faces a Triple Threat : Under the guise of fiscal limits, a movement is attempting to pervert our rights, threatening our health and safety.

August 21, 1994|ROBERT H. SULNICK | Robert H. Sulnick is executive director of the American Oceans Campaign, based in Santa Monica. and

There is a movement growing in our nation's capital that all citizens should be aware of. The insiders call it the "triple threat." It is a well-funded, highly organized movement supported by the radical right, developers, the petrochemical industry, private-property extremists and state and local governments opposed to federal mandates. This movement is about fundamentally changing constitutional democracy as we know it. The backdoor techniques being used include a redefinition of a "taking" under the Fifth Amendment and attacks on the equal-protection clause of the 14th Amendment through the concepts of unfunded mandates and cost-benefit and comparative risk analysis.

The Fifth Amendment provides that the government may not "take" private property for public use--to build highways, dams, airports, etc.--without just compensation. When there is a dispute regarding the price, the parties resolve their differences in court.

A "takings" amendment is now being attached to environmental, health, civil rights, labor and education bills pending before Congress. The amendment would distort this time-honored provision so that pollution prevention laws would become defined as a "taking," thereby allowing such scenarios:

* Factory owners could pollute unless paid by the federal government to halt their actions.

* Local zoning ordinances changed to comply with federal health and safety laws that require industrial development to be separate from residential neighborhoods would be considered a "taking." This would result either in invalidation of zoning laws or residential property owners' being compensated by the government for the commercial value of their real estate.

* The insurance industry and doctors could claim that lost profits related to health-care legislation are a "taking," and therefore warrant reimbursement by the federal government.

Unfunded-mandate amendments, like "takings" amendments, are an attempt to exaggerate the Constitution to the point of perversion. This attack is against the equal protection clause of the 14th Amendment. Fundamental to our form of government is the principle that all citizens, irrespective of where they live, are entitled to equal protection under the law. The unfunded-mandates concept would inhibit any uniform federal application of law to states, unless the federal government pays for the full price of implementing the law. This could yield the following results:

* If Congress passes health-care reform that includes an employer mandate to provide insurance, state and local governments would not need to comply unless Washington paid its share of the employees' coverage.

* If Congress passes a safe drinking-water act requiring all states to upgrade their tap-water standards, states could be exempt unless the federal government paid for upgrading their water systems.

* If the federal government increases the minimum wage, the increase could not go into effect for employees working for state and local governments unless Washington paid for the increase.

Another attempt to erode constitutional rights is being made through cost-benefit and comparative-risk analysis. This is an economic technique that attempts to put a dollar value on every potential benefit derived from a federal law. For example, in a recent EPA analysis on water-pollution rules, the risk of children developing learning disabilities from exposure to lead was weighed against the cost of removing the lead from the environment. In so doing, EPA attributed a cost of $4,588 per lowered IQ point to children suffering lead-related learning disabilities, compared with the tangible hard costs of removing lead from the environment. How can anyone place a dollar value on a child's health? Any standards enacted on this basis would be arbitrary and excessive and stand to deprive people of their right to equal protection under the law.

This concept, if enacted into law, would produce a "paralysis by analysis" in federal government. It would require an analysis and estimate of the prospective impact of all federal legislation and regulations on the private sector and on government.

Even though these amendments are being justified in terms of economic hardship during recessionary times, they are simply a surreptitious attempt remove the federal government from its role as protector of equal rights for all citizens. We must clearly communicate to our elected officials our disapproval of this threat before they are tyrannized into destroying constitutional rights in the name of "fiscal responsibility."

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