Last week, we covered the idea of cooperative federalism, having reviewed dual federalism before that. This week, let’s consider what some people refer to as coercive federalism.
Some experts in federalism argue that cooperative federalism has become more coercive over time.[1] The evolution of federal grants since the Social Security Act of 1935 (SSA) provides a good illustration. The SSA was the most significant legislative enactment of the New Deal period – and not only for its economic impact.[2] The Act created several federal-state programs, including unemployment insurance and the Aid to Families with Dependent Children program. It also authorized federal oversight of state and local governments by requiring auditing requirements for most of the Act’s grant programs. In 1939, state employees administering SSA programs were required to be selected by merit system procedures, thus reducing the influence of state and local party bosses. In 1939, the Hatch Act restricted the political activities of state and local government employees paid with federal funds.
According to one expert, the coercive nature of some federal grant programs emerged most strongly in the 1970s and 1980s in response to the resistance of some states to social movements favoring civil rights, poverty reduction, and pollution controls.[3] In addition to policy conditions, two of the more coercive elements include unfunded spending mandates and federal preemptions of state laws. Both have been used more and more over time. A more complete list can be found here.
- Mandates: Some grants require states to spend more than they receive.[4] The Clean Air Act amendments of 1970 and 1990 are good examples: they required billions of dollars in spending that the states did not have. In 1995, lawmakers enacted the Unfunded Mandates Reform Act in part to ensure that Congress debates the potential effects of unfunded mandates as it considers proposed grants legislation. The Act slowed but did not eliminate unfunded mandates.
- Preemptions: The Constitution’s Supremacy Clause is the foundation for the doctrine of federal preemption.[5] According to the preemption doctrine, federal law supersedes conflicting state laws. In some cases, Congress will set a minimum national standard while allowing states to set higher standards. That practice is referred to as partial preemption. Preemptive and partially preemptive federal statutes shape the regulatory environment for most major industries. As a result, the federal government’s preemption power is frequently debated in the courts, in Congress, and in the business community.
We will have a little more to say on this subject next week, Stay tuned! Or, …
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[1] Kincaid, J. (1990). From cooperative to coercive federalism. The Annals of the American Academy of Political and Social Science, 509(1), 139-152.
[2] Congressional Research Service, 2019a, p. 19.
[3] Kincaid, 2017, p. 1068.
[4] Rozell & Wilcox, 2019, pp. 67-68.
[5] Congressional Research Service (2019b). Federal preemption: A legal primer. R45825.