Friday, January 20, 2017

‘Death by a thousand cuts?’

Countless words have been written or spoken about the electronic logging device mandate and if this tracking technology – due to be in effect in December – should have been a choice. This jack-booted rule has been grabbing headlines, driving industry talk and aggravating drivers for several years. And it’s one that’s been in the legal cross-hairs of OOIDA for as long.

OOIDA won a round in court to stop it, but in a second battle, a federal court in Chicago decided it didn’t see the wrong in allowing the Federal Motor Carrier Safety Administration to force it on everyone. OOIDA requested for a rehearing but was denied. It seems to me it was just easier for the court to defer to the government agency rather listen to the needs and rights of the people.

It just doesn’t make sense that a federal court would agree that electronic logging devices be forced on all trucks. A simple solution to the controversy is that ELDs need to be voluntary, not a fist-smashing, no-exception decree. But that wasn’t considered here.

OOIDA is now planning to take the ELD case further – which is, of course, to ask the U.S. Supreme Court to consider hearing it. Because buried in the thousands of words is one simple one that makes the Association go on. That word is mandate. Nothing here justified a mandate. The minute ELDs become a rigid way of life for three million commercial truckers, the industry is headed down an irreversible and completely unbending path that runs afoul of the Constitution.

This suddenly becomes so much more than ELDs.

California’s truck and bus rules, for example. And right in front of us – speed limiters.

A real threat is the trampling of the separation of powers. As you will remember from your old eighth-grade lessons, we have three separate branches of government – legislative, executive and judicial – this way there is not one big government that wields all the power.

Just in case you were lobbing spitballs during the “checks and balances” lesson, each of these branches are supposed to have the ability to check the powers of the other branches. In important aspect of this separation of powers concept is this: our government is in the business of protecting the individual rights of its citizens. Unfortunately, sometimes it is a powerful government agency itself that is blatantly the violator. When that happens, citizens and advocacy groups like OOIDA, yell as loud as they can to bring attention to it, urging another balancing branch of power to step into the ring.

A court system that cannot steady an unreasonable congress or rein in a federal agency that makes quasi-despotic and heavy-handed rules is a frightening reality. Where is the balance?

An interesting scene that is already becoming clear is that the 115th Congress may be more receptive to acting on, not ignoring, much-needed regulatory reform and that’s hopeful news.

An old Chinese term that was used in a Senate subcommittee hearing this week describes how all of these rules together can be lethal – “Death by a thousand cuts.” That’s a good description of the cumulative damage taking a toll on small-business truckers and shows no sign of slowing down. It has to stop.

Hopefully, 2017 will provide OOIDA an opportunity to successfully champion true checks and balances.