For a decade or more, state and local governments have been complaining of unfunded or underfunded mandates from the federal government. And they will be complaining much more if President Clinton's health care reform package is passed. That's because the package would establish a national health board to make the rules for health care while imposing on state governments the burden of administering the rules.
The fact that Washington orde other governments to assume burdens without paying the costs may strike many Americans as unfair. It may also seem puzzling. In a federal system, how does the national government get the right to give orders to state governments?
If ours were a purely federal system - one in which numerous governments enter into a compact for limited purposes - the states would retain their independence. Before 1787, under the Articles of Confederation, the United States was a pure federation. However, when the Constitution was framed the United States created a national government - one that derived powers directly from the people and had power to tax, regulate commerce, coin money, raise armies and navies, fight wars and otherwise do the things that signify sovereignty.
Certain features of federalism survived. The states still existed. They were represented equally in the Senate, whose members were elected by state legislatures. Through the electoral college, the states had an important part in filling the presidency The Constitution could not be amended without approval by three-fourths of the states. The states'boundaries could not be changed without their own consent. And, as the 10th Amendment declared, the states and the people retained whatever powers had not been delegated to the national government.
James Madison, the leading framer, called the product of 1787 a "compound" republic because it was neither purely national nor purely federal but rather a mixture of the two. Whether one type of government or the other would prevail, or whether a balance between the two could be maintained, was an open question.
From the vantage point of 1994, we can see that the national republic has prevailed and that the imbalance in its favor grows steadily.
From the very start, the powers of have been interpreted expansively. The doctrine that it possesses only limited, enumerated powers has collapsed. Virtually no one - least of all in the halls of Congress - is prepared to argue that there are powers Congress may not exercise because they are reserved for the states.
Very early, too, the national government, aided by a Supreme Court presided over by John Marshall, established a superior claim to say what the Constitution meant. If any doubt remained on that score after the death of Marshall, it was removed by the Civil War.
Constitutional amendments also have altered the balance. The 14th, adopted in the wake of the Civil War and imposed on Southern states as a condition for readmission to the Union, provides that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" - language that has given the federal judiciary virtuauy unlimited license to strike down state laws. The 17th Amendment diluted the federal character of the Senate by providing for popular election of senators.
Still, despite these powerfully centralizing developments, it was unusual until fairly recently for the national government to give the states affirmative commands - what today are loosely called mandates. Thus the emergence of mandates is just the latest in a long series of changes that have made the states unambiguously inferior, and they are one more stage in the conversion of Madison's compound, balanced republic into a predominantly national one.
Mandates can take different forms. I will discuss judicial decrees, regulations, grant-in-aid conditions and partial preemptions, which cover the most important cases. …