Wednesday, June 24, 2009

What time is it in Indiana? Whatever the hell time Washington wants it to be!

One of my brothers used to work in a Chicago office with a few employees who commuted to town daily from nearby Indiana. There apparently was a running gag going on in which the employees who resided in Illinois teased the Hoosiers over their state's time zone intricacies--most of the state is on Eastern Time but the areas close to Chicago are on Central Time, plus Indiana until recently didn't have Daylight Savings Time except where they did, etc.

Since my brother was also a big fan of the TV series The West Wing, this episode, not surprisingly, was one of his favorites. From the wikipedia summary:

"Much of the episode deals with the trio's attempts to get home; however, their journey is delayed by several mishaps (Cathy's car runs out of diesel, they board the wrong train, they miss their plane due to confusion over time zones, etc.) As their journey continues and Josh and Toby debate campaign strategy (eventually concluding that the election should be about the voters' everyday concerns, and not about Bartlet vs. Ritchie), the three of them are exposed to the culture of rural Indiana."

I think the episode concluded with Josh and Toby discovering that people in rural Indiana were apprehensive about having as their choice for President either Barbara Streisand's husband or the father of the guy on Two and A Half Men. By the way, I always thought the title of this episode was "What Time is it in Indiana?" and it probably should have been as that sounds a lot more interesting that "20 Hours in America."

But in thinking about the Constitution the other day--as I do a lot--something dawned on me. Why exactly is it that Indiana for years was permitted to exercise the power to say: "No thanks, the rest of America, we choose not to participate in Daylight Savings Time. It confuses our livestock too much."? (The time change really is confusing to the animals at my petting zoo; they don't understand why all of a sudden we're arriving to work, feeding them, or putting them into the barn for the night an hour earlier or later.)

To answer this, let's look at it the other way, top down instead of bottom up. Why does the federal government have the power to establish time zones and institute Daylight Savings Time in the first place?

If you check the Congressional findings of fact from 15 U.S.C. 260a (2007), you'll notice that there is no declaration such as "pursuant to the power of Congress to regulate commerce 'with foreign nations and among the several states' granted by Article I, Section 8 of the United States Constitution..." to let you know specifically what authority they are grounding this legislation on. I personally wish they would always do this; every single law in the United States Code should begin with a reference to its basis in the Constitution. Nevertheless, since the findings of fact end with mention of the benefits of "expanded economic opportunity" and "extension of domestic office hours to periods of greater overlap with the European Economic Community,'' and since the law appears in Title 15, entitled "Commerce and Trade," it's safe to assume Congress is exercising its authority under the Commerce Clause here.

Then again, Article I, Section 8 also empowers Congress to "fix the Standard of Weights and Measures" and it certainly doesn't seem a stretch to say that time is a kind of measure. So Congress could just cite that constitutional authority as a reason why they can create time zones or enact Daylight Savings Time. Or they could argue that both constitutional grants of power are relevant here. The point is, it's pretty clear that the federal government isn't stretching it to say they can decide what time it is in Indiana.

So why did Indiana prior to 2005 get to say "Hell no, we won't go!? Or maybe more appropriately, "This is a crock, don't change our clocks!"

The answer is that Indiana could ignore Daylight Savings Time not because they said they could, but because the federal government said they could. From 15 U.S.C. 260a:

"(1) any State that lies entirely within one time zone may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if that law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable during that period, and (2) any State with parts thereof in more than one time zone may by law exempt either the entire State as provided in (1) or may exempt the entire area of the State lying within any time zone."

I find what comes right after that in the law somewhat amusing:

"It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section."

Uh... okay, you guys in Congress say it's your intent to supersede state laws except you just gave the states the authority to supersede federal law. Josh and Toby could have mused over that bit of bureaucratic weirdness while they were getting lost and stranded all over Indiana.

But Indiana and the other states can't ignore just any old federal law enacted pursuant to Congressional powers. For example, see 29 U.S.C. 206 (2007) the federal minimum wage law. Exceptions are made for Puerto Rico, the Virgin Islands, seamen, and agricultural workers--but unlike with the Daylight Savings Time law, there is no provision allowing a state to opt out of the legislation. Indiana has to pay what the other states pay.

Somewhere in Indiana there must be a business owner who would argue it's a bigger imposition on his operation to have to pay a set minimum wage every hour of every working day than to simply have to reset clocks twice a year. But the Supreme Court upheld the constitutionality of Congress setting a federal minimum wage almost seventy years ago, in United States v. Darby, 312 U. S. 100 (1941), so nobody is likely to get very far at this point challenging the minimum wage, although that won't stop folks like Walter Williams writing an article every year or so decrying the practice. My attitude, frankly, has always been that no matter what, you're GOING to have a minimum wage. It's just that if you don't let Congress decide what it is, the rate will instead be set in a boardroom in Oak Brook, Illinois, or Bentonville, Arkansas. I don't see that as an improvement.

But what about looking at this a slightly different way. What if Indiana reinstituted its dismissal of Daylight Savings Time, but then immediately after they did, Congress decided to amend the law, rescinding the offer to states to ignore the policy if they choose. In other words, in this scenario Congress would veto the Indiana law. Could they do that?

Well if they did, you know somebody from Indiana would challenge the legislation in federal court, making a Tenth Amendment argument that Congress was intruding on a prerogative of the several states. But I can't see how the Hoosier plaintiff could prevail. Not only would the feds cite United States v. Darby, they'd cite dozens of cases going back to McCulloch v. Maryland, 17 U.S. 316 (1819) in support of the proposition that when Congress has authority to act, their authority is exclusive.

Anyway, that's moot since Indiana now has Daylight Savings Time. The state also went for Obama last November and Indiana University hasn't won a Big Ten men's basketball title in seven years. So all three of the things that used to distinguish Indiana from the other Great Lakes states--no Daylight Savings Time, always voting for the GOP in presidential elections, perennial hoops champion--are by the wayside now.

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