The passage of health care legislation this week, while elating Democrats, has proven an equally potent motivator for conservatives advocates of states’ rights. Appearing on Sean Hannity’s Fox News show last night, Sen. Jim DeMint (R-SC) was asked about the viability of the legal challenge to the health bill filed by 14 mostly conservative attorneys general.

Sen. Jim DeMint (R-SC) (Photo: The 44 Diaries)

DeMint’s reply included an interesting shout-out to transportation policy (emphasis mine):

[I]n fact, I think the states may be our only hope to stop this rampage of government takeovers at the federal level. If we had more states push back not only on health care, but on education, opening up their own energy supplies, on getting back their own transportation dollars, there are many things this federal government is doing that are outside the realm of the enumerated powers of the constitution.

That casual reference to state "transportation dollars" masks a long-simmering debate over the federal gas tax. For 17 years, Congress has declined to raise the tax (now 18.3 cents per gallon) or index it to inflation, despite polling that shows most of the public already thinks the latter move is settled law.

But lawmakers have shown an indefatigable will to fight over the dwindling gas tax revenues that the government does collect. Conservatives often push for states to get the maximum amount of their gas-tax dollars directed back home in the form of guaranteed highway spending — a boon to states with more drivers and newer roads, but a setback for states with older infrastructure and denser cities that diminish the need for auto use.

This conflict is known as the "donor-donee" issue. It does not split states along near ideological lines: California is the federal road program’s No. 1 "donor," with "donee" states concentrated in the northeast and mountain west, according to the lobbying group Coalition for Donor State Equity.

Nonetheless, DeMint’s invocation of transportation funding as a battleground for states’-rights advocates reflects an active rhetorical current on the right.

Sen. Kay Bailey Hutchison (R-TX), during her unsuccessful gubernatorial bid last year, touted a proposal to let states withdraw entirely from the federal transportation system and keep their own gas-tax money within their borders. Former House Majority Leader Tom DeLay (R-TX) helped delay the 2005 federal transport bill until "donor" states were guaranteed a higher rate of return on their gas taxes — despite data showing that when federal taxes beyond transportation are considered, most of the biggest "donor" states hail from the northeast.

As the GOP, increasingly influenced by the tea-party movement, continues to press constitutional criticisms of federal policy, look for transportation to rear its head more often.