3 responses to “Photo Red Enforcement found ‘illegal’?”

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  Chad Dornsife December 21st, 2009 at 08:03

  All traffic control laws in Arizona are subordinate to federal law and this field is not a power enumerated to the states. Its Governed by the Constitution, Congress’ Intent and the FHWA has been designated by Congress the oversight of the standards to be applied.
  Ignorance of law work both ways and Arizona’s practice were not legal.
  If you would like to learn about the law, happy to help you.

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  azbikelaw December 21st, 2009 at 12:29

  Chad,
  thank you for your reply, but I must respectfully disagree.
  Outside of some unusual circumstances, there is no such thing that I know of that equates to some sort of federal vehicle code that has the force of law. The UVC isn’t. These are all just guidelines issued by various federal agencies — here is a good backgrounder on the various federal enabling legislation traffic safety stuff, from the NHTSA.

  One of the unusual circumstances I am aware of revolves around “federal enclaves”, e.g. here is a discussion of enforcing traffic laws on a military base in the District of Columbia. Something similar probably crops up on various jurisdictions, like maybe Indian Reservations(?), Federal Parks(?)… but in any event isn’t what we’re dealing with here.

  Your mention of enumerated powers really puzzles me. My (VERY ELEMENTARY) understanding of this is that all powers not specifically mentioned in the US Constitution are off-limits to Congress, and flow directly to the states. So, since traffic is not enumerated it is left to the states.

  Federal power in the traffic safety area is generally recognize to be coercive-only in nature. A perfect example of this being seat belt laws. The feds (Congress) wrote a law that withheld highway monies to any state that did not adopt laws requiring their wearing.

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  Chad Dornsife December 21st, 2009 at 18:59

  Sent you an email with the detailed version including statute cites – but for the others here the following should suffice

  What wasn’t noticed from 1973 to 1995 when the NMSL was repealed, the entire paradigm for traffic control regulation during this period transformed from largely state powers to federal supremacy encompassing the entire field, and all state and local laws became subordinate in every respect. Our “Law of the Land” now applied to any public or private roadway, pedestrian facility or bikeway open to public travel within the U.S. and its Territories.

  All administrative rules, federal and state statutes, standards and or practices etc are subordinate and shall be in substantial conformance and advance “uniformity” and “roadway safety” vis-à-vis one standard; uniform in appearance, application, expectation and the exercise of police powers thereof “regardless of type or class or the public agency having jurisdiction”!

  U.S. TRAFFIC LAW HISTORY AND WHY STATE LAWS ARE SUBORDINATE

  Our Founding Fathers knew that the regulation nation’s transportation corridors (Article 1 § 8(7); post roads) along with Commerce and National Defense were indispensable to the General Welfare of the nation, and these powers were not enumerated to the states.

  In the 19th century Post Roads came to embrace all related modalities including the telegraph, railroads etc.

  Before travel became ubiquitous, and we changed the nomenclature of our Nation’s “post roads” in the early 20th Century to roadways or highways, this Constitutional authority nexus was raised from time to time but for all practical purposes it was dormant in the public consciousness.

  The need for uniformity to achieve safety came to the fore in 1926 with the first efforts to establish a Uniform Vehicle Code (UVC), and in 1927 for the Manual on Uniform Traffic Control Devices (MUTCD), but the realization of Eisenhower’s’ National Defense and Interstate System turned it into an imperative.

  In 1966, in addition to Congress’ Constitutional regulatory authority per Article 1§8(7), Congress in the Highway Safety Act of 1966 (P.L. 89-564, 80 Stat. 731) invoked the Commerce Clause to encompass this entire field to achieve roadway safety on any facility open to public travel.

  In this Act Congress replaced the former Bureau of Roads with a new Cabinet level agency, the US Department of Transportation (USDOT): it included the new Federal Highway Administration (FHWA) that was responsible for roadways and traffic control and the Manual on Uniform Traffic Control Devices (MUTCD); and the new National Highway Traffic Safety Administration (NHTSA) that was assigned drivers and vehicles and oversight of the Uniform Vehicle Code (UVC).

  The “U” in the MUTCD and UVC is the term “uniform”, which is implicit in all federal acts and regulations per the Constitution.

  The Highway Safety Act of 1966 et al as adopted by Congress created a new paradigm for the Nation’s traffic laws and its phased-in mandates encompassed all of us; individuals, law enforcement, public entities, the courts and the USDOT! Thereby all traffic control and the exercise of police powers thereof became a federally regulated field that shall be fact based, and uniform in every aspect regardless of political boundaries, entity type or classification in the US and its Territories; subject to all Constitutional protection therein; and any subordinate regulation must substantially conform to the same standards as the empowering law, including those regulating the actions of a federal agency per 5 USC 706.

  Regardless, if the USDOT acts or not, it does not abrogate the rights of the citizen, or the responsibility of the posting authority and the engineering practitioners to promulgate their laws and practices in substantial conformance with the US Constitution and Congress’ intent, nor can the USDOT allow a subordinate Authority in a federally regulated field violate the mandates of the governing federal laws.

  The Supremacy Clause invalidates state laws and federal agency administrative rules, MUTCD or UVC regulations that interfere with, or are contrary to the US Constitution and the intent of Congress. As such, USDOT (FHWA; NHTSA) is not empowered to abrogate or subvert these mandates, only enforce them.

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