| Introduction
The formation of the federal states at the time
of Independence had been based on an established
federal system of government in which each state
had a role and responsibility to the running of
the government. Before 1776 the colonies had been
under the British government. The colonies resisted
this government and proposed the federal government
system that united the states and formed one single
system of governance. The independent states at
the time had agreed to the division of the power
of government between the centralized federal
government and the states government. Based on
this federalism, the United States has erected
its current political infrastructure. Problems
born out of federal or local governments are resolved
through the collaborative efforts of both the
governments. For centuries this mode of governance
have served the purpose of controlling the states
yet at the same time allowed the Federal government
to have authority over the state governments.
In the recent years however, it has been observed
that the states governments are finding it increasing
difficult to comply with the federal government
mandates to resolve states and federal problems.
One of these problems includes the issue of unfunded
mandates in education.
Unfunded mandates which have become a law enacted
in 1995 under the title Unfunded Mandates Reform
Act requires that local governments and federal
government to engage agencies to forecast costs
and benefits that may result in annual expenditures
by the State, local or tribal governments. In
this context the term "federal mandates"
means the provision by the Federal government
imposed on State, local or tribal governments
to implement certain duties using legislation,
statute, or regulations. There are two types of
mandates - funded mandates and unfunded mandates.
Funded mandates are requirement of participation
of States in Federal programs that are fully funded.
On the other hand, at times the Federal government
requires States to participate in programs at
their own expense yet they have to comply with
the law. The issue of unfunded mandates thus has
become a major debate between the local and the
Federal government in the recent years as more
and more states are becoming burdened by their
past expenditures and over budget spending. They
are not willing to comply with unfunded federal
mandates which have greatly affected the intergovernmental
relationships between the Federal government and
the State governments.
Discussion
Each year when the US annual budget is outlined
and assessed, Federal and state governments engage
in comprehensive debates as to what component
deserve more budget allocation and which should
not. In the recent years the GDP has been growing
at a negative rate ranging from 3.7 in 2000 to
0.8 in 2001 and reviving from 1.9 in 2002 to estimated
4 % in 2004 (Kiplinger Forecasts 2004) which has
unbalanced resources within the country. Federal
budget has become depleted due to over spending
while States also demonstrate similar crises.
On top of these economic crises when the Federal
government levies unfunded mandates states are
likely to rebel by refusing to comply with it.
Brian Riedl (2003) in his analysis of the issue
of unfunded mandates enumerates on the fact that
states consider unfunded mandates unfair rationalizing
that the States should have control over their
own expenditures. The Federal government should
not force them to implemented unwanted programs
that are at the cost of the states' government.
This is because unfunded mandates tend to add
more cost to the States' budget which result in
deficits and low on funds. For example in 1998
the government's unfunded mandates on state food
stamps reimbursements and minimum wage increase
which has resulted in $9 million costs. Such high
cost resulting from unfunded mandates not only
unbalance the state budget but also increase in
Federal spending. Yet despite this fact the Federal
government continues to implement unfunded mandates
on states.
The power of Federal government to enforce unfunded
mandates, as mentioned earlier stem from the federalism
principles which allow the autonomous Federal
government to enforce laws and regulations on
states government. In 1787 the Framers of the
Constitution observing the limitations of the
Continental Congress on preserving the lives and
property of the citizens and its inability to
meet up with financial responsibilities, decided
to establish a policy that would appoint a centralized
government but with some of the powers vested
in the States' government (Eastman 2002). This
decision has greatly influenced the way the Federal
government and the local governments operate today
as the basis for the formation of the Federal
government system has given much of the power
to the central government while the local governments
are allowed to be independent in their budgets,
legislations and judiciary etc. to a certain extent.
Important regulations and policies that pertain
to education, social security, healthcare and
taxes are still in the hands of the Federal government.
Even at the time one notes that the Framers of
the Constitution realized the importance of independence
of the States so that they can govern their States
as they deem fit for their people. Issues such
as community education, food stamps as well as
Medicare that have become important social needs
need to be addressed by the States as well as
the local government. However, it is the local
government that knows best how to generate revenues
and taxes to cover their own expenses. Inclusion
of unfunded mandates therefore tends to again
centralize the power of governance which results
in less power vested in the local governments
to manage their people and resources (Eastman
2002).
This very issue is still inherent in the governance
of the United States today. According to James
Wilson in the Pennsylvania ratifying convention
the importance of the division of sovereign powers
was highlighted by: "I consider the people
of the United States as forming one great community,
and I consider the people of the different States
as forming communities again on a lesser scale.
From this great division of the people into distinct
communities it will be found necessary that different
proportions of legislative powers should be given
to the governments, according to the nature, number
and magnitude of their objects. Unless the people
are considered in these two views, we shall never
be able to understand the principle on which this
system was constructed." (Eastman 2001).
Thus, the Unfunded Mandates Act (1995) which has
been enacted with the purpose to reinforce the
federalist principles does not in essence serve
the purpose of legislative powers given to the
local governments neither does it serve the purpose
of benefiting the public. Take for example the
1990 Americans with Disabilities Act (ADA) (Atwood
1994) which mandates states to erect municipalities,
repair works on curbs and the like to serve the
public. Yet the cost implied is at the cost of
the tax payers and of the local government. The
Federal government on the other hand does not
have to pay for the compliance cost neither is
it interested in dealing with the budget deficit
resulting from unfunded mandates.
This kind of Federal mandates is therefore forced
onto the local governments with added responsibilities
that the local government cannot afford to comply
with. Not only this but the Unfunded Mandate Reform
Act is against the 10th Amendment. The Tenth Amendments
provides veto powers to the State government.
This fact has been legally acknowledged by the
Supreme Court in 1992 during the historic case
decision of New York v. United States in which
the Court Justice O'Connor had decided: "No
matter how powerful the federal interest involved,
the Constitution simply does not give Congress
the authority to require the states to regulate."
(Atwood 1994). From this judgment one can understand
that the States has power and more knowledge in
dealing with their own problems rather than the
Federal government. Furthermore, the Federal government
often takes a pervasive view when passing mandate
resolutions to States without realizing the implications
on individual states. For this reason, intergovernmental
relationships have been compromised between the
Federal and the States' governments. According
to Atwood these states and local governments are
fighting against the Federal government in the
following ways:
"They are publicizing the costs of unfunded
federal mandates and holding their Congressmen
publicly accountable for mandate votes.
They are challenging Congress's authority to
impose mandates, resisting micromanagement by
the federal bureaucracy and in some instances
simply refusing to comply.
They are suing the federal government for violation
of the Tenth Amendment and arguing to constrict
the expansive interpretation of the Commerce Clause.
They are lobbying Congress to pass mandate-relief
legislation and to submit for ratification by
the states a "no money, no mandate"
constitutional amendment.
They are considering collective action to challenge
the federal government's most grievous intrusions
on states' autonomy and to amend the Constitution
to reaffirm the principles of federalism.
With increasing frequency, these state actions
are carried out alongside the efforts of a growing
grassroots movement dedicated to reestablishing
the constitutional limitations on the federal
government. The National Tenth Amendment Committee
in Colorado, for example, is working with legislators,
activists, and groups in over 40 states to pass
resolutions asserting state sovereignty under
the Tenth Amendment." (Atwood 1994)
According to Robert T. Gray's (1995) report on
unfunded mandates, Congress has long been using
this Act to force public and private sectors to
implement mandates that have serious consequences
on the local tax level on individuals and businesses
so that the end result is often heavy on the final
consumer. For this reason officials at all levels
are against federal unfunded mandates. They recognize
the key reasons for poor intergovernmental budget
controls and are of the opinion that the Federal
government should change its policies to meet
the needs of the local bodies.
Changing policies involve a long process. Before
one identifies the areas that need to be changed,
one must understand the Unfunded Mandates Reform
Act. The Act is divided into two parts: Title
I involve legislative dealing with accountability
and reform. At the first stage the Congress estimates
the cost of implementing mandates on the local
government before it decides whether the mandates
should be funded or unfunded. The agencies determine
the net costs involving the various sectors and
the government itself. The Act in this context
defines the intergovernmental mandate as "any
provision in legislation, statute, or regulation
that would impose an enforceable duty upon state,
local or tribal governments, except a condition
of federal assistance; or a duty arising from
participation in a voluntary federal program."
(Gullo and Kelly 1998). Under Title II the Federal
government agencies like the Office of Management
and Budget and the Congressional Budget Office
are required to consult with local states as to
what legislations, regulations, statutes to implement
and at what cost. This is done by analyzing the
different bills that are applicable according
to the Mandate. Title III required these agencies
to publish the reports on the viability of implementing
the mandates for public review. Given these Titles,
the Unfunded Mandates Reform Act is considered
to be flexible as it allows the local governments
to choose which bill to appropriate and give priority
to. For example the new regulation No Child Left
Behind Act although is a federal unfunded mandate
but it does not in any way enforce the local authority
to implement it. Under Title II, the No Child
Left Behind Act is subjected to the condition
that the local government is willing to implement
the Act into its schooling system. The funds would
be shared by the government through appropriations
in education budget but it does not have a separate
funding program. State governments object to the
high cost of education as the reason for not implementing
the Act. Others are of the opinion that the Act
and the unfunded mandates is clearly the Federal
government's way of enforcing powers on to the
local government. Past experience according to
these opponents, indicate that most of the unfunded
mandates eventually fall onto the shoulders of
the citizens of that state in the form of higher
taxes, fees and cost of living. As a result whether
directly funded or indirectly, local governments
have to implement into their existing administrative
systems which require funding to set any new system.
The No Child Left Behind Act mandate too has a
cost baggage associate with it.
According to the Act (2001) the Federal government
mandates educational institutions to promote education
for special education population. Proven, parents
of special education students can apply for appropriations
to fund the education of their children in another
school that match with their children's abilities.
The basic premise is that the parents can ask
the State to provide the fund for putting their
children in expensive schools so that they can
study and progress educationally. These are basically
designed for disadvantaged students who do not
have the facility nor the ability to fund their
schooling. From this example one observe that
the Unfunded Mandates Reform Act in essence attempt
to force states' to take initiatives to rectify
social problems (Kelly 1994). One of the strongest
arguments that the Federal government is posing
against the States debates is that the No Child
Left Behind Act is unfunded mandate but it is
also not a compulsion that all states apply it
unless needed. This condition has brought the
debate to a standstill as States have no justification
for how to deal with the No Child Left Behind
Act which would no doubt greatly benefit the public
but would prove to be heavy on the local government
not in terms of funds but in terms of restructuring
of curriculums in educational institutions. For
this reason Utah House Speaker Martin R. Stephens
says: “If it (No Child Left Behind) is fully
funded, then we’ll implement it. And, if
it’s not, if there are requirements for
which there are not enough federal funds, then
we won’t." (Scott 2004).
Yet according to Kelly's research states are finding
it difficult to comply with the federal unfunded
mandates that require the utilization of resources
directed at one or two programs whereas with the
same budget the local authority can deal with
several aspects of governance. For example: "In
Tennessee (1992) the overwhelming majority of
resources spent on mandates are devoted to Medicaid
expenses. Louisiana's (1992) study also focused
on Medicaid compliance costs. Alaska, Arizona
and Ohio examined the impact of federal environmental
mandates. Alaska (1992) found future compliance
with existing mandates to the year 2000 approached
$430 million. The city of Columbus, Ohio estimated
its cost to the end of the century at $1 billion
(1992)". (qt. Kelly 1994).
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