Tags: Federal | Power | Over | Local | Governments

Federal Power Over Local Governments

Sunday, 27 March 2005 12:00 AM

His speech was a bracing reminder about the hope generated by the "Class of '94" in tackling a troublesome problem and why, despite their best efforts ten years ago, the battle for reform must continue to be waged.

Kempthorne remarked that the groups, whom one would assume would be natural allies, rarely had worked together on federal legislation. Thanks to his patient effort, the National League of Cities, U.S. Conference of Mayors, National Association of Counties, National Governors Association, the National Conference of State Legislators, Council of State Governments and the International City/County Management Association formed a coalition to advance UMRA.

UMRA requires the Congressional Budget Office to score legislation on the cost of its unfunded mandates. If an unfunded mandate is estimated to be more than $50 million, a senator or congressman could stop the bill by raising a point of order. The way Governor Kempthorne recalled UMRA, "It simply says, if Congress passes a bill, it can't pass the buck."

Senator Alexander remarked on how troublesome unfunded mandates were when he was Tennessee governor during the late 1970s and 1980s. It really amounted to an opportunity for a congressman or senator to grandstand, claiming action on an issue when he merely passed the buck to the states. States and localities were left picking up the tab or else coming to Washington with a tin cup held in outstretched arms.

In many cases I definitely think Senator Alexander is correct. He remarked on the difficulty local school boards face when they shuffle funding to meet federal mandates on educating children with disabilities. The mandates reduce funding needed to teach children of average ability.

No doubt you've heard the old phrase "When it rains, it pours." Now, thanks to new EPA regulations governing storm water run-off, city officials, who must meet the costs, are forced to say, "When it rains, we will need to hike taxes." If the rain doesn't soak taxpayers, the taxes certainly will.

Senator Alexander and I respectfully disagree over Internet taxation. Congress has succeeded in keeping the Internet tax-free, a factor which has contributed greatly to its growth. Millions of Americans have benefited from the easy access to information and to purchasing goods and services on the Internet. The senator's speech mentioned the Internet tax as an unfunded mandate because it costs state and local officials some sales tax revenue. However, on most matters related to this issue we agree.

Alexander argues that Congress' inability to reform the Medicaid program, which terms of eligibility the federal government dictates to the states, requires the states to spend more of their money in compliance. This federally mandated program costs states money that could be spent on traditional programs – schools, roads, police and parks.

The federal courts, through consent decrees, take it upon themselves to determine what local policies should be for local governments. How transportation is handled in Los Angeles is determined not by the City Council or the mayor but by the federal courts. This role should be determined by elected officials, not a judge.

Alexander noted in the speech how consent decrees mandate how his state's TennCare system, the Medicaid program, must spend money, some of which the governor would rather devote to education. Alexander emphasized, "The people of our state believe that if we have an important policy decision – not a rights decision, but a policy decision – that elected officials ought to be able to make that decision."

Kempthorne told the National League of Cities that UMRA has worked very well during the past decade. In his view, UMRA's purpose was not to discourage all mandates but to reduce them and hold Congress accountable for their passage. He told the National League of Cities:

"The [Government Accountability Office in a May 2004 study] concludes that the Unfunded Mandates Reform Act ‘may have indirectly discouraged the passage of legislation identified as containing intergovernmental mandates at or above UMRA's cost threshold. Since 1996, only three proposed intergovernmental mandates with annual costs above the applicable threshold had become law.'" He continued, "Additionally, the GAO found that the mandates law 'may have also aided in lessening the costs of some mandates. From 1996 through 2000, the Congressional Budget Office identified 59 proposed federal mandates above the limits set by the law. After CBO found them, 9 were amended before enactment to reduce their costs to below the limits, and 32 were never enacted. Eighteen mandates above the levels set by the law were enacted during that time, most on the private sector.'"

Alexander takes a different view. He believes that more must be done, having told the National League of Cities: "During these last ten years, in my view, about the only part of the federal government that has recognized the importance of strong state and local government in our federal system is the United States Supreme Court, which has rediscovered that the 10th Amendment to the United States Constitution reserves the states' powers that are not expressly granted to the central government."

Alexander proposes amending UMRA to require 60 votes in the Senate to impose unfunded mandates. He also wants to make it easier for state and local elected officials to be able to change or vacate (essentially ending) outdated court decrees.

He is working with Senators Mark Pryor, D-Ark., and Ben Nelson, D-Neb., a former state attorney general and governor. Alexander explains, "This legislation would put term limits on consent decrees, shifts to plaintiffs the burden of proving that the decrees need to be continued and requires that courts draw decrees narrowly with the objective of moving responsibility back into the hands of elected officials as soon as possible."

Alexander also wants to ensure that federal statutes do not pre-empt local laws unless it is made clear in the legislation that there is a direct conflict between state and federal laws.

The Founding Fathers envisioned a strict delineation between local and state responsibilities and those assumed by the federal government. They also did not envision the nation's federal judiciary to be unelected policymakers. Over time, the responsibilities have blurred as more policies set by Washington and the federal courts have been thrust upon the states and local governments, leaving them to pick up the tab.

Imagine being told by the boss of the company that your department is going to take a deduction from your paychecks to pay for your computers. There'd be a revolt. Unfortunately, it does not quite work that way in government.

UMRA made a good start, but Senator Alexander is intent on seeking further reform, especially reining in the power of the courts to micromanage the policies of local and state governments. He wants the current Congress to recapture some of the revolutionary spirit that guided the "Class of '94" by reaffirming the value of federalism.

It's a worthy mission, and his proposals are worthy of study and debate by a Congress and federal courts that too often have been more concerned with headlines proclaiming they were tackling problems while, in reality, all they were doing was passing the buck to state and local governments.

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His speech was a bracing reminder about the hope generated by the "Class of '94" in tackling a troublesome problem and why, despite their best efforts ten years ago, the battle for reform must continue to be waged. Kempthorne remarked that the groups, whom one...
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2005-00-27
Sunday, 27 March 2005 12:00 AM
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