Government in Washington often is war carried on by other means. It is an interminable war of indecisive battles between factions of the government. Government needs more battles like those at Thermopylae, Tours, Hastings, Waterloo--battles where issues were settled.
Consider the war over automobile airbags, a war now in its second decade. If you think the Supreme Court ruling last week settled things, think again.
The ruling came a few days after the court's decision striking down the legislative veto. That decision focused attention on how much of the legislating process is delegated by the legislature to the executive branch: Congress expresses sentiments and asks an executive department or independent agency to turn the sentiment into law --into rules regulating behavior.
In 1966 Congress directed the secretary of transportation to issue safety standards that "shall be practicable, shall meet the need for motor-vehicle safety, and shall be stated in objective terms." Congress authorized judicial review of all regulations. Such semi- legislation is an invitation to protracted conflict, and many parties--insurance organizations, auto manufacturers, consumerists, medical groups-- accepted the invitation.
There have been approximately 60 separate rule-making actions in the history of Standard 208, issued in 1967. In 1967 seatbelts were required. When it became clear that few persons used belts, DOT began considering "passive restraints." Those are devices the effectiveness of which does not depend on any action by occupants of a vehicle. Automatic seatbelts fasten to doors and secure occupants when the doors close. Airbags are inflatable devices carried in dashboards and steering columns. They inflate when deceleration forces become severe; then they quickly deflate.
In 1969 the Nixon administration proposed passive restraints. In 1972 it said such restraints would be required in vehicles manufactured after Aug. 15, 1975. Challenged in court, that decision was upheld. Manufacturers opted for the "ignition interlock"--cars would not start until belts were buckled. An enraged public began performing appendectomies on their cars, dismantling the interlocks. The loud complaints awoke Congress, which, acting with a speed not seen since Pearl Harbor, forbade the interlock and, for good measure, gave itself a legislative veto (deceased) over subsequent standards.
The bureaucratic machinery clanked on, producing (to touch only high points) President Carter's requirement of passive restraints and President Reagan's rescinding thereof. The Reagan administration argued that the life-saving potential of airbags, which is not disputed, would not be realized. This because in 99 percent of all cases manufacturers would satisfy the "passive restraint" requirement with automatic seatbelts designed to be easy to detach, and most of these would be detached by the cars' owners.
The court concluded (all nine justices concurring, at least in part) that this decision was capricious. So? So "further consideration of the issue is required." World without end, amen. Victoria Will, age 2, may become a lawyer--don't almost all American children?--and earn her living litigating the airbag war.
And yet . . .
The court said that a minimal requirement of Congress' directive is consideration by DOT of the possibility that the logical response to the faults of detachable seatbelts is to require nondetachable belts, or airbags. At the risk of seeming radical, or perhaps reactionary, I suggest it is time for the lawmakers to make law.
Sen. John Danforth (R-Mo.) is prepared to play the part of Charles Martel, who at Tours in 732 A.D. sent the Moors packing. Danforth's bill says, among other things: "Each manufacturer of passenger automobiles shall install airbags in each passenger automobile manufactured on or after Sept. 1, 1985." That is what a law looks like.
And after 14 years the evidence is in and vindicates passive restraints. Spending on medicine--often on attempts to recover health lost unnecessarily--is becoming a threat to the nation's economic health. The only substantial and immediately achievable improvements of public health would cost the public treasury nothing. They would come from less smoking, less drinking, less overeating, more exercise. And more use of seatbelts. Use of seatbelts would cut fatalities in half and injuries by two-thirds.
For 54 years motor vehicles have been the nation's leading cause of accidental deaths and injuries. Last year an average of 126 Americans a day died on highways. A conservative estimate is that if airbags had been required during the last decade, the lives saved would number many more than the lives lost in Vietnam. The savings to the private economy and the public treasury would have been scores of billions of dollars.
Honorable persons can disagree about what the law ought to be. But surely it is time for Congress to say what the law shall be.