UNFUNDED MANDATES AND FISCAL FEDERALISM - A CRITIQUE

The term ''unfunded federal mandates'' is used to challenge federal ob ligations imposed on states and localities without accompanying fundin g. Unfunded mandates were alluded to by both the majority and dissenti ng opinions in Printz v. United States, in which provisions of the Bra dy Handgun Violence Protection Act were invalidated by the U.S. Suprem e Court on Tenth Amendment grounds. In this Article, Professor Adler c ritiques the fiscal, legal, and policy arguments against unfunded fede ral mandates. This analysis, in turn, raises two broader issues. First , is the concept of unfunded mandates independently useful to the nati on's ongoing debate about federalism? Second, does the mandate issue p rovide insight into the hey legal question of whether judges or electe d officials are best suited to decide the appropriate roles of the fed eral and state governments? Following a brief history of the debate ov er unfunded federal mandates, the Author analyzes the term and its com ponent parts and concludes that the phrase has been used too broadly t o challenge actions that are not properly ''unfunded,'' ''federal,'' o r ''mandates.'' Next, Professor Adler concludes that past efforts to a ssess the costs of unfunded federal mandates seriously overstated the costs of such mandates to states and cities. Moreover, he argues that the costs of federal mandates are more than offset by all forms of fed eral aid and that states and cities remain net beneficiaries in interg overnmental fiscal relations. The legal analysis concludes that, for m ost purposes, the degree of funding attached to federal programs is no t relevant to their validity on Tenth Amendment grounds. Last, the Aut hor challenges the presumption that unfunded federal mandates are ''ba d'' on normative grounds, rather than legitimate, neutral policy choic es about what level of government should decide and pay for various as pects of public policy. Because the unfunded federal mandate terminolo gy defies precise definition, because it is legally irrelevant to the validity of federal programs on constitutional grounds, and because su ch mandates can be supported as well as opposed on normative grounds, Professor Adler concludes that the mandate concept provides little ind ependent utility to the ongoing debate about federalism. Moreover, sin ce elected officials can properly weigh the costs and benefits of indi vidual mandates in the context of overall federal tax, spending, and r egulatory policy, while federal judges are limited to discrete challen ges to individual federal programs, the analysis lends strong support to the view that the political branches are better equipped than the j udiciary to decide important issues of federalism.