WILL BUSH RETHINK FEDERAL MANDATES?

Law Needs To Loosen Up On Minors' Indiscretions

I'm a baby boomer, so it's been a quarter-century since I was 19-the age of
Jenna and Barbara Bush when the presidential twin daughters received
misdemeanor alcohol citations in Texas last week.

I confess I had no idea that the law in the Lone Star State would put
Jenna, who was earlier busted for booze, at risk of a six-month jail
sentence if she gets nabbed a third time. And while Texas may have the
nation's toughest liquor laws, news accounts from around the country were
an eye-opener for me.

California, where I went to school in the late '70s, already had a drinking
age of 21. Which is to say, just about everyone I knew in college was in
constant violation of the law when on campus, oftentimes when off campus.
To be sure, it wasn't easy for us underagers to saunter into a bar and be
served, but we did it anyway, confident that the worst that could happen is
we'd be thrown out. The idea of calling the cops was unheard of. At the
risk of sounding prematurely Andy Rooney-ish, I'll say times sure have changed.

A reader might say, "Well, Jim, you didn't know any of this because you're
a childless Washingtonian who has lived so long inside the Beltway that you
have no feel for how real people live their lives out in the Heartland."
And that's true, of course.

But if I don't have much first-hand familiarity with law enforcement as
practiced against young people these days, I do know something about law
creation here in D.C. And so I know, for example, that the Texas statute
putting young Jenna at risk of six months in the slammer has its origins
here in Powertown. As the Associated Press reported, Jenna's father,
then-Gov. George W. Bush, "signed the law in 1997 after the federal
government threatened to withhold highway funding from states unless they
adopted 'zero-tolerance' underage drunken driving laws."

And I know that this crackdown on states' rights began, ironically enough,
during the presidency of Ronald Reagan, when Secretary of Transportation
Elizabeth Dole worked with both Republicans and Democrats to force states
to raise their drinking ages by threatening their highway funding. A good
idea? Most people, worried about drunk driving, probably thought so, and
probably still do.

I also know that the "success" of this effort has been replicated in many
other instances, as Uncle Sam squeezes the states to enforce a myriad
federal mandates-many of which were never specifically authorized by
Congress-covering everything from drug testing to gun possession to seat belts.

Along the way, a new legal phenomenon has emerged: Call it policing without
thinking, and judging without judgment. That is, since few people truly
think that the offense of the Bush daughters is much of an offense,
enforcement of all these new laws is by the book. Indeed, any variation-in
the name of, say, good sense-leaves authorities open to charges of
disparate impact or racial profiling. Moreover, "zero tolerance" schemes
today extend far beyond alcohol enforcement. Kindergarten cops nail kids
who carry guns and kids who draw guns-even kids who point breaded chicken
fingers at each other-with equal vigor.

This may be the law, but is it common sense? Not according to lawyer Philip
Howard, author of a new book, "The Lost Art of Drawing the Line: How
Fairness Went Too Far," in which he writes that "justice today is
purposeless." In an interview, Howard observed, "We'd rather mandate
injustice for everyone than tolerate occasional injustice by letting people
exercise discretion."

I may not know how to help reduce teen drinking, but I doubt that many of
my fellow Washingtonians know how either. But maybe one difference that
sets me apart from them is that I'm willing to say: This is ridiculous. Let
state and local governments figure out how to deal with these matters,
without taking orders from folks in the 202 area code.

Will my opinion be heeded? If the past is any predictor, probably not. But
I've been joined here in Washington by George W. Bush. As Texas governor,
he seemed content to be on the receiving end of federal mandates. Yet now
as president, he's on the giving end of the legal equation. And as a
father, he now has occasion to rethink the impact of federal mandates on
young people everywhere.