U.S. calls on high court to revive 1994 act protecting driver privacy; Conservative justices fear law infringed on states' rights


WASHINGTON -- The Supreme Court's conservative majority seemed troubled yesterday that Congress might have gone too far to stop states from disclosing drivers' personal information. But the justices had difficulty finding a solid reason to strike down a 1994 driver privacy law.

At a hearing that reinforced the impression that the majority wants to continue its trend toward insulating states from congressional authority, the justices considered the constitutional fate of the Driver's Privacy Protection Act.

Congress passed that law after being informed that personal information about drivers -- names, addresses, telephone numbers, Society Security numbers, medical information -- was being sold widely by states from their driver's license and auto registration files.

Such information is widely used in marketing and in compiling databases for political campaigns. Congress was also concerned that the information was being used by criminal stalkers or by abortion opponents to track down clinic doctors.

The law was struck down by a federal appeals court last year, and the Clinton administration sought yesterday to persuade the justices to revive it.

But U.S. Solicitor General Seth P. Waxman encountered trouble with the conservative justices who in recent years have issued decision after decision reinforcing states' rights, usually at Congress' expense, by striking down federal laws that intrude on state powers.

Justice Anthony M. Kennedy, one of the leaders in those efforts, told Waxman, "For 150 years, the assumption has been that Congress can't regulate the states; it can regulate people." The driver protection law, Kennedy said, "blurs the line" between what Congress can do with its authority and what the states can do with theirs.

Kennedy and Justice Sandra Day O'Connor expressed concern that the 1994 law marked the first time that Congress had passed a law intended solely to regulate what states may do in carrying out a government function.

When Waxman argued that protecting drivers' privacy was as much within Congress' powers as regulating air and water pollution, Justice Antonin Scalia disagreed, saying "any person could pollute," but only states can collect and retain motor vehicle records -- the sole target of the 1994 law.

Waxman said Congress had passed the law to try to balance the economic importance of databases containing information about consumers with the need for "personal privacy and personal security." The court, Waxman argued, should respect that balance and uphold the law, especially because the release of personal information poses "a unique risk to privacy."

Even as the majority expressed doubts about the validity of the law, the conservative justices reacted skeptically to attempts by the state of South Carolina, the challenger to the law in this case, to offer a persuasive reason to nullify it.

Several justices flatly rejected the argument by state Attorney General Charles Condon that the 1994 law "commandeered" state motor vehicle workers into enforcing the law on behalf of the federal government. In the past, the court had found it unconstitutional for Congress to press state employees into such enforcement roles.

Kennedy and Scalia told Condon that there was no evidence to show that barring the state from selling or releasing drivers' personal information would require any effort by state employees.

The more liberal justices, who have been resisting the states' rights trend, sought to raise the stakes in the fight over the driver privacy law, saying a decision to strike down the law would also mean that the court would have to cast aside many other federal laws that also impose burdens on the states.

Justices Stephen G. Breyer and David H. Souter suggested that laws like the one that controls overtime pay and minimum wages would be at risk, as would a string of Supreme Court rulings that have limited states' taxing power.

Even O'Connor suggested that, in deciding the fate of the driver privacy law, the court might have to re-examine Congress' power to impose duties on state governments -- such as the obligation to obey the federal wage and hour law.

The court has refused recently to reconsider the wage law's constitutionality. It denied, for example, challenges to that law raised by the Baltimore Police Department and the Anne Arundel County fire department.

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