Unfunded mandate
An unfunded mandate is a statute or regulation that requires any entity to perform certain actions, with no money provided for fulfilling the requirements. This can be imposed on state or local government, as well as private individuals or organizations. The key distinction is that the statute or regulation is not accompanied by funding to fulfill the requirement.
An example in the United States, would be those federal mandates that induce "responsibility, action, procedure or anything else that is imposed by constitutional, administrative, executive, or judicial action" for state and local governments and/or the private sector.
As of 1992, 172 federal mandates obliged state or local governments to fund programs to some extent. Beginning with the Civil Rights Act of 1957 and the Civil Rights Act of 1964, as well as the Voting Rights Act of 1965, the United States federal government has designed laws that require state and local government spending to promote national goals. During the 1970s, the national government promoted education, mental health, and environmental programs by implementing grant projects at a state and local level; the grants were so common that the federal assistance for these programs made up over a quarter of state and local budgets. The rise in federal mandates led to more mandate regulation. During the Reagan Administration, Executive Order 12291 and the State and Local Cost Estimate Act of 1981 were passed, which implemented a careful examination of the true costs of federal unfunded mandates. More reform for federal mandates came in 1995 with the Unfunded Mandates Reform Act, which promoted a Congressional focus on the costs imposed onto intergovernmental entities and the private sector because of federal mandates. Familiar examples of Federal Unfunded Mandates in the United States include the Americans with Disabilities Act and Medicaid.
Background
An "intergovernmental mandate" generally refers to the responsibilities or activities that one level of government imposes on another by legislative, executive or judicial action. According to the Unfunded Mandates Reform Act of 1995, an intergovernmental mandate can take various forms:- An enforceable duty – this refers to any type of legislation, statute or regulation that either requires or proscribes an action of state or local governments, excluding actions imposed as conditions of receiving federal aid.
- Certain changes in large entitlement programs – this refers to instances when new conditions or reductions in large entitlement programs, providing $5 billion or more annually to state or local governments, are imposed by the federal government.
- A reduction in federal funding for an existing mandate – this refers to a reduction or elimination of federal funding authorized to cover the costs of an existing mandate.
Mandates can be applied either vertically or horizontally. Vertically applied mandates are directed by a level of government at a single department or program. Conversely, horizontally applied, or "crosscutting", mandates refer to mandates that affect various departments or programs. For example, a mandate requiring county health departments to provide outpatient mental health programs would be considered a vertically applied mandate, whereas a requirement that all offices in a given jurisdiction to become handicap-accessible would be considered a horizontally applied mandate.
History
Federal unfunded mandates can be traced back to the post-World War II years, when the federal government initiated national programs in education, mental health services, and environmental protection. The method for implementing these projects at the state and local level was to involve state and local governments. In the 1970s, the federal government utilized grants as a way to increase state and local participation, which resulted in federal assistance constituting over 25 percent of state and local budgets.The first wave of major mandates occurred in the 1960s and 1970s, concerning civil rights, education, and the environment. The arrival of the Reagan administration ostensibly undermined various federal mandate efforts, as the executive branch promised to decrease federal regulatory efforts. For example, the passage of Executive Order 12291 required a cost-benefit analysis and an Office of Management and Budget clearance on proposed agency regulations, and the State and Local Cost Estimate Act of 1981 required the Congressional Budget Office to determine the state and local cost effects of proposed federal legislation moving through the Legislative Branch. However, the U.S. Advisory Commission on Intergovernmental Relations reported that, during the 1980s, more major intergovernmental regulatory programs were enacted than during the 1970s.
According to a 1995 Brookings Institution report, in 1980 there were 36 laws that qualified as unfunded mandates. Despite opposition from the Reagan administration and George H. W. Bush administration, an additional 27 laws that could be categorized as unfunded mandates went into effect between 1982 and 1991.
The U.S. Supreme Court has been involved in deciding the federal government's role in the U.S. governmental system based on constitutionality. During the period between the New Deal era and the mid-1980s the court generally utilized an expansive interpretation of the interstate commerce clause and the 14th Amendment to validate the growth of the federal government's involvement in domestic policymaking. For example, the 1985 Supreme Court case Garcia v. San Antonio Metropolitan Transit Authority affirmed the ability for the federal government to directly regulate state and local governmental affairs.
The increase of mandates in the 1980s and 1990s incited state and local protest. In October 1993, state and local interest groups sponsored a National Unfunded Mandates Day, which involved press conferences and appeals to congressional delegations about mandate relief. In early 1995, Congress passed unfunded mandate reform legislation.
In 1992 the court determined in various cases that the US Constitution provides state and locality protections concerning unfunded mandate enactments. For example, in the 1992 case New York v. United States, the Court struck down a federal law that regulated the disposal of low-level radioactive waste, which utilized the Tenth Amendment to the United States Constitution to require states to dispose of the radioactive material.