FEDERAL MANDATES: BANKRUPTING STATES AND DESTROYING FEDERALISM
In a letter to Charles Hammond, dated August 18, 1821, Thomas Jefferson predicted our present state of affairs when he wrote: "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."
The founding fathers relied on four mechanisms to keep the federal government one of limited powers: (1) the separation of powers doctrine (commanding that legislative, executive, and judicial powers not be combined in a single individual or entity but remain separate and diffuse); (2) the non-delegation doctrine (forbidding the re-delegation of powers vested by the Constitution in Congress, the President, and the federal courts); (3) the enumerated powers doctrine (rendering by express Constitutional specification the federal government one of enumerated powers forbidden from exceeding those powers and invading the plenary province of the states); and (4) the Tenth Amendment (recognizing that all powers not delegated by the Constitution to the federal government and not prohibited by it to the States were powers reserved to the States and the people).
The doctrines and the Tenth Amendment were intended to maintain the primacy of the States over domestic matters, including health, education, welfare, and law enforcement. That dual federalist system, where State power would be plenary and federal power limited and expressly enumerated, has been eroded to near oblivion by the progressive encroachment of federal power over all domestic affairs since the 1930's.
Each of the doctrines and the substantive purpose of the Tenth Amendment have been rendered ineffectual barriers to the assumption of all power by judicial construction. Since the 1930's, the federal government has imposed hundreds of costly unfunded mandates on the states and localities, consuming an ever increasing amount of their budgets and crowding out locally inspired solutions to problems with federally required programs.
Three forms of coercion and cajolery are employed by the federal government to induce state reliance and cooperation on federal controls. In the first, states and localities are made eligible for grants in exchange for their agreement and achievement of federal objectives. In the second, states and localities are ordered to implement federal programs and are given grants to fund those programs. In the third, states and localities are ordered to implement federal programs but are given no funds, or are given woefully inadequate funds, to cover the cost of the programs.
Implementation of the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act has cost state and local governments in excess of $100 billion since 1993. The extraordinary number and variety of mandates makes calculation of the total cost imposed on the states and localities a daunting task. In 1900, almost 60% of government spending came from the states. Today the federal government spends almost three times as much as all other levels of government combined.
Rather than serve as an effective check on the invasion of the federal government into the province of the states, the states have increasingly been absorbed by the federal government, becoming functionaries of the Congress and the federal agencies. Among the federal arch villains in robbing states of power and resources are the Fair Labor Standards Act, the Family and Medical Leave Act, the Individual with Disabilities Education Act, the Americans with Disabilities Act, the Occupational Safety and Health Act, Medicaid, the Clean Water Act, the Safe Drinking Water Act, the Endangered Species Act, Davis-Bacon related Acts, and the Patient Protection and Affordable Care Act (Obamacare).
Many in the states have not taken these incursions lying down, but with a history of judicial condonation of federal usurpations of power, they have been stymied in their attempts. With each incursion visited upon the states (either willfully or forcibly accepted), the states have lost an ever increasing degree of control over their budgets and agendas. The time required to implement, and the cost of, the federal mandates are crowding out state and local priorities and initiatives. They are forcing states and localities to increase taxes.
The unfunded mandates tax story is one of horror. Unfunded mandates are another disingenuous and elusive means by which Congress avoids the wrath of the electorate for its tax increases. Congress and the President have a perverse incentive to impose unfunded mandates on the states, such as the myriad of such mandates stemming from Obamacare, because it forces the states to raise taxes and take the heat from the electorate (shielding Congress from direct responsibility).
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We will not be able to secure a return to a limited federal republic unless unfunded mandates are eliminated and expansions of the federal government beyond the enumerated powers of Congress are held unconstitutional. Thus, the promise of the 2010 mid-term elections and the hope for the 2012 elections will not be realized until Congress implements a serious agenda of reform to end federal government encroachments into the beleaguered and overburdened states and localities.
� 2011 Jonathan W. Emord - All Rights Reserved