Federalism

NOW THEREFORE BE IT RESOLVED, that The Council of State Governments affirms, on behalf of the states, their sovereignty under the 10th Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

The current economic crisis and the new Democratic majority in the federal government will produce significant policy changes relevant to state-federal relations, but, overall, American federalism will continue its contemporary coercive course in an evolutionary manner because that course has involved expansions of federal power that were augmented by crises in the past and by change-minded presidents supported by partisan majorities in Congress.

Congress first enacted statutes preempting regulatory powers of states and their political subdivisions in 1790, but the impact of subsequent preemption acts with a few exceptions was relatively minor until 1965 when a sharp increase in such statutes occurred and many statutes involved fields traditionally regulated by the states. Most preemption statutes involve civil rights, commerce, communications, environmental protection, finance, health, telecommunications and transportation. This article focuses principally upon the preemption bills signed into law by President George W. Bush.

The 2008 elections will not alter the coercive course of American federalism. Given that little will be accomplished in Washington, D.C., before 2009, the new president and new congressional majority will likely address such long-simmering issues as education, entitlements, health insurance, immigration and infrastructure. However, centralizing trends—such as conditions of aid, mandates and preemptions—will endure because they have enjoyed bipartisan support since the late 1960s. Intergovernmental administrative relations will be mostly cooperative, and state policy activism will remain vigorous, but the Supreme Court will not resuscitate federalism.

This article reviews interstate relations developments since 2005 pertaining to uniform state laws, interstate compacts, interstate administrative agreements, state attorneys general joint suits, same-sex marriages, civil unions and pertinent court decisions.

BE IT THREFORE RESOLVED, that The Council of State Governments supports the principles espoused in the Federal Consent Decree Act; and

BE IT FURTHER RESOLVED, that Congress should enact the Federal Consent Decree Fairness Act.
 

The distribution of federal funds affects a wide array of organizations, individuals and activities throughout the United States economy. Data abound on the size of the overall federal government budget and on spending by federal departments and agencies. However, only one primary source shows not only the agency and program detail, but also the geographic distribution of these funds: the U.S. Bureau of the Census’ Consolidated Federal Funds Report. This article provides details and insights into the make-up and significance of these huge flows of federal funds on state and local areas.

The American federal system has been shaken by the impact of recent traumatic events, especially the threats to homeland security and the states’ fiscal crises. These developments have produced deep seated tensions across a wide range of intergovernmental relationships. Recent trends toward coercive relations may be ameliorated by strategies fostering contingent collaboration.

The states’ current fiscal crisis is due not only to the country’s economic downturn but also to changes in fiscal federalism that have exposed state fiscal systems to the impacts of federal policymaking, economic developments and demographic changes to greater degrees than in the past. Essentially, the states face growing long-term contradictions between escalating spending pressures and eroding tax bases over which states have only limited control. Short-term crisis-management actions, such as cutting spending, increasing taxes, accelerating tax collections, delaying bill payments, expanding gambling and using up reserves, are damaging, stopgap tactics. Long-term solutions will require more fundamental remedial fiscal reform by both the federal government and the states.

Congressional preemption of state governments’ regulatory powers dates to 1790, but it generally did not have a major impact until 1965, when the number of preemptive statutes increased sharply. Most congressional preemptions involve commerce, the environment, finance and health. Technological developments and interest group lobbying will result in the enactment of new preemption statutes — particularly in the areas of banking, communications, finance services, insurance and taxation — unless states initiate actions producing harmonious interstate regulatory policies.

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