Unfunded Mandates and Fiscal Federalism: A Critique

Article excerpt

The term "unfunded federal mandates" is used to challenge federal obligations imposed on states and localities without accompanying funding. Unfunded mandates were alluded to by both the majority and dissenting opinions in Printz v. United States, in which provisions of the Brady Handgun Violence Protection Act were invalidated by the U.S. Supreme Court on Tenth Amendment grounds. In this Article, Professor Adler critiques the fiscal, legal, and policy arguments against unfunded federal mandates. This analysis, in turn, raises two broader issues. First, is the concept of unfunded mandates independently useful to the nation's ongoing debate about federalism? Second, does the mandate issue provide insight into the key legal question of whether judges or elected officials are best suited to decide the appropriate roles of the federal and state governments?

Following a brief history of the debate over unfunded federal mandates, the Author analyzes the term and its component parts and concludes that the phrase has been used too broadly to challenge actions that are not properly "unfunded," "federal," or "mandates." Next, Professor Adler concludes that past efforts to assess the costs of unfunded federal mandates seriously overstated the costs of such mandates to states and cities. Moreover, he argues that the costs of federal mandates are more than offset by all forms of federal aid and that states and cities remain net beneficiaries in intergovernmental fiscal relations. The legal analysis concludes that, for most purposes, the degree of funding attached to federal programs is not relevant to their validity on Tenth Amendment grounds. Last, the Author challenges the presumption that unfunded federal mandates are "bad" on normative grounds, rather than legitimate, neutral policy choices about what level of government should decide and pay for various aspects of public policy.

Because the unfunded federal mandate terminology defies precise definition, because it is legally irrelevant to the validity of federal programs on constitutional grounds, and because such mandates can be supported as well as opposed on normative grounds, Professor Adler concludes that the mandate concept provides little independent utility to the ongoing debate about federalism. Moreover, since elected officials can properly weigh the costs and benefits of individual mandates in the context of overall federal tax, spending, and regulatory policy, while federal judges are limited to discrete challenges to individual federal programs, the analysis lends strong support to the view that the political branches are better equipped than the judiciary to decide important issues of federalism.

I. INTRODUCTION

Since the nation was created, courts, elected officials, scholars, and others have debated the appropriate balance between federal and state rights and obligations-the basic nature of federalism in the United States.l The most recent slogan used by state and local advocates in this ongoing debate is opposition to "unfunded federal mandates."2 The phrase refers to obligations imposed on states and localities by the federal government without federal funding,3 which many perceive as an abuse of power by the national government.4 Indeed, in the last U.S. Supreme Court case decided during the 1996-97 Term, which invalidated parts of the Brady Handgun Violence Protection Act5 (the "Brady Bill") on federalism grounds, both the majority and dissenting opinions alluded to the issue of unfunded mandates in dicta.6

This Article assesses the fiscal, legal, and policy arguments advanced to challenge the validity of unfunded federal mandates. Fiscal opposition is based on the assertion that the cumulative impact of these mandates has grown dramatically over the past several decades as the costs of implementing mandates have increased while accompanying federal funding has declined. Legal opposition is based on the Tenth Amendment and other principles of federalism. …