Unfunded mandate
The examples and perspective in this article may not represent a worldwide view of the subject. (October 2023) |
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[1]
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.[2]
As of 1992, 172 federal mandates obliged state or local governments to fund programs to some extent.
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.[10] According to the Unfunded Mandates Reform Act of 1995 (UMRA), 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.[11]
- 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.[11]
- 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.[11]
A 1993 study conducted by
Mandates can be applied either vertically or horizontally.[14] 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.[15] 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.[15]
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.[16] 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.[5]
The first wave of major mandates occurred in the 1960s and 1970s, concerning civil rights, education, and the environment.
According to a 1995
The
The increase of mandates in the 1980s and 1990s incited state and local protest.[23] 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.[23] In early 1995, Congress passed unfunded mandate reform legislation.[24]
In 1992 the Court determined in various cases that the Constitution provides state and locality protections concerning unfunded mandate enactments.
Examples
Unfunded mandates are most commonly utilized in regulation of
Clean Air Act
The Clean Air Act was passed in 1963 to support the United States Environmental Protection Agency (EPA), established on December 2, 1970, in developing research programs looking into air pollution problems and solutions.[27] The EPA received authority to research air quality. The 1970 Amendments to the Clean Air Act established the National Ambient Air Quality Standards, authorized requirements for control of motor vehicle emissions, increased the federal enforcement authority but required states to implement plans to adhere to these standards.[28] The 1990 Amendments to the Clean Air Act of 1970 expanded and modified the National Ambient Air Quality Standards and expanded and modified enforcement authority.[27] The amendments increased the mandates on states to comply with the federal standards for air quality. States have had to write up State Implementation Plans, have them approved by the EPA and must also fund the implementation.[28]
The Americans with Disabilities Act of 1990
The Americans with Disabilities Act of 1990 prohibits discrimination based on disability, requires existing public facilities to be made accessible, requires new facilities to comply with accessibility expectations, and requires that employers provide anything a disabled employee might need, such as a sign language interpreter.[29][30] Tax incentives encourage employers to hire people with disabilities.[31] State institutions and local employers are expected to pay for changes made to existing facilities and are responsible for making sure that new facilities are in compliance with the federal requirements under the ADA.[32]
Medicaid
Medicaid is a health program for low-income families and people with certain medical needs in the United States.[33] It is funded jointly by the federal and state governments, but implemented by states.[34] Federal funding covers a variable portion of at least half of Medicaid costs,[35] and states are expected to cover the remainder. This means that any federally mandated increase in Medicaid spending forces states to spend more.[36] However, as state participation in Medicaid is voluntary, it is not technically an unfunded mandate.[37]
EMTALA
EMTALA is the acronym for the Emergency Medical Treatment and Active Labor Act passed by the United States Congress in 1986 to halt certain practices of patient dumping. The act requires hospitals accepting payment from Medicare to provide emergency treatment to any patient coming to their emergency department, regardless of their insurance coverage or ability to pay. Though hospitals could theoretically choose to not participate in Medicare placing them outside of EMTALA's scope, very few do not accept payments from Medicare causing EMTALA to apply to nearly all US hospitals.[38] Though EMTALA infers an obligation to provide certain emergency care, the statute does not contain any provision regarding funding or financing of said emergency care. EMTALA could therefore be characterized as an unfunded mandate.[39]
The No Child Left Behind Act of 2001
The 2001
Criticism
Critics argue that unfunded mandates are inefficient and are an unfair imposition of the national government on the smaller governments.[43][44] While many scholars do not object to the goals of the mandates, the way they are enforced and written are criticized for their ineffectiveness.[45][46][47] State and local governments do not always disagree with the spirit of the mandate, but they sometimes object to the high costs they must bear to carry out the objectives.[45]
The debate on unfunded federal mandates is visible in cases such as New York v. United States, mentioned above.[45] In School District of Pontiac, Michigan v. Duncan, the plaintiffs alleged that the school district need not comply with the No Child Left Behind Act of 2001 because the federal government did not provide them sufficient funding; the court concluded that insufficient federal funds were not a valid reason to not comply with a federal mandate.[48]
Unfunded Mandates Reform Act
Purpose
The Unfunded Mandates Reform Act (UMRA) was approved by the
UMRA was enacted to avoid imposing mandates, when said mandates did not include federal funding to help the SLTG (State, Local, and Tribal Governments)[clarification needed] carry out the goals of the mandate.[50] It also allowed the Congressional Budget Office to estimate the cost of mandates to SLTGs and to the private sector, and allows federal agencies issuing mandates to estimate the costs of mandates to the entities that said mandates regulate.[51]
Application
Most of the act's provisions apply to proposed and final rules for which a notice of the proposed rule was published, and that include a Federal mandate that could result in the expenditure of funds by SLTGs or the private sector of or in excess of $100 million in any given year.
UMRA allows the United States Congress to decline unfunded federal mandates within legislation if such mandates are estimated to cost more than the threshold amounts estimated by the Congressional Budget Office.[51] UMRA does not apply to "conditions of federal assistance; duties stemming from participation in voluntary federal programs; rules issued by independent regulatory agencies; rules issued without a general notice of proposed rulemaking; and rules and legislative provisions that cover individual constitutional rights, discrimination, emergency assistance, grant accounting and auditing procedures, national security, treaty obligations, and certain elements of Social Security".[51]
Effectiveness
Ever since UMRA was proposed, it has remained unclear, how effective the legislation actually is at limiting the burdens imposed by unfunded mandates on SLTGs, and whether or not unfunded mandates need to be limited so strictly.[51] Proponents of the Act argue that UMRA is needed to limit legislation that imposes obligations on SLTGs and that creates higher costs and less efficiency, while opponents argue that sometimes federal unfunded mandates are necessary to achieve a national goal that state and local governments don't fund voluntarily.[51] Opponents also question the effectiveness of the bill due to the aforementioned restrictions.[51]
2015 Unfunded Mandates and Information Transparency Act
The Act was written to amend UMRA by having the CBO compare the authorized level of funding in legislation to the costs of carrying out any changes. It was done by also amending the
Foxx had authored a previous version of this bill, which also passed the house, as H.R. 899 (113th Congress) in February 2014.[56] The bill would allow private companies and trade associations to look at proposed rules before they are announced to the public. The concern is that private companies could weaken upgrades to public protections.[citation needed]
Notes
- ^ "Unfunded mandate". BusinessDictionary.com. Archived from the original on 2012-07-12. Retrieved 2012-06-30.
- ^ Catherine H. Lovell, Max Neiman, Robert Kneisel, Adam Rose, and Charles Tobin (June 1979). Federal and State Mandating on Local Governments: Report to the National Science Foundation. Riverside, CA: University of California, p. 32
- ^ a b Dilger, Robert J., and Richard S. Beth. Unfunded Mandates Reform Act: History, Impact, and Issues. Publication no. 7-5700. Congressional Research Service, 2012. Print.<https://fas.org/sgp/crs/misc/R40957.pdf>
- ^ "America's Historical Documents". National Archives. 2016-01-25. Retrieved 2023-02-17.
- ^ a b c Salamon, Lester M., and Michael S. Lund. Beyond Privatization: The Tools of Government Action. Washington, D.C.: Urban Institute, 1989.
- ^ a b Public law 97-108.
- ^ United States. Cong. House. House Committee on Rules. Statement. By Alice M. Rivlin. H. Doc. Congressional Budget Office, 1981. Print.
- ^ Anderson, Stacy, and Russell Constantine. Unfunded Mandates. Briefing Paper No. 7. Harvard Law School Federal Budget Policy Seminar, 3 May 2005. Web. 8 Apr. 2012. <http://www.law.harvard.edu/faculty/hjackson/UnfundedMandates_7.pdf>
- ^ United States. Environmental Protection Agency. Summary of the Unfunded Mandates Reform Act. Print.
- ^ Lex, Leo. "Intergovernmental Mandates in Federal Legislation," CBO Economic and Budget Issue Brief, (July: 2009).
- ^ a b c Congressional Budget Office. "Identifying Intergovernmental Mandates," Economic and Budget Issue Brief. Jan 2005. 2.
- ^ Price Waterhouse letter to the Honorable Barbara Sheen Todd, National Association of Counties, 25 October 1993.
- ^ Johnston, Jocelyn. "The Medicaid Mandates of the 1980s: An Intergovernmental Perspective," Public Budgeting and Finance (Spring, 1997), 3–34.
- ^ Herzfeld, Daniel. "Accountability and the Nondelegation of Unfunded Mandates: A Public Choice Analysis of the Supreme Court's Tenth Amendment Federalism Jurisprudence," George Mason Law Review. 419. (1998–1999)
- ^ a b Lovell, Chatherine and Tobin, Charles. "The Mandate Issue," Public Administration Review, Vol. 41, No. 3 (May–June, 1981). 318–31.
- ^ Smith, Tom W. 1990. "Liberal and Conservative Trends in the United States since World War II." Public Opinion Quarterly 54:479–50
- ^ a b Presidential Task Force on Regulatory Relief. 1982. Reagan administration achievements in regulatory relief for state and local governments: A progress report. Washington, D.C.
- ^ Advisory Commission on Intergovernmental Relations, Federal Regulation of State and Local Governments: The Mixed Record of the 1980s, A-126 (Washington, DC: ACIR, 1993).
- ^ Dilulio, John and Don Kettl, Fine Print: The Contract with America, Devolution, and the Administrative Realities of American Federalism (Washington, D.C.: Brookings Institution, 1995), p. 41.
- ^ "A Brief Overview of the Supreme Court" (PDF). United States Supreme Court. Retrieved 2009-12-31.
- ^ Lawson, Gary. "The Rise and Rise of the Administrative State". Harvard Law Review. 1237–41 (1994).
- ^ Garcia v. San Antonio Metropolitan Transit Authority, 105 S. Ct. 1005 (1985).
- ^ a b Gullo, Theresa A. and Janet M. Kelly, "Federal Unfunded Mandate Reform: A First-Year Retrospective", Public Administration Review, Vol. 58, (Sept. 1998). 380.
- ^ Public Law 104-4, 109 Stat. 48.
- ^ a b New York v. United States, 505 U.S. 144 (1992).
- ^ Lowi, Theodore J., Benjamin Ginsberg, Kenneth A. Shepsle, and Stephen Ansolabehere. "Federalism and the Separation of Powers." American Government Power and Purpose. 11th ed. New York: W W Norton & Co, 2010. 59-60.
- ^ a b "History| Clean Air Act | US EPA." EPA. Environmental Protection Agency. Web. 17 Apr. 2012. <"History | Clean Air Act | US EPA". Archived from the original on 2012-05-02. Retrieved 2012-05-07.>.
- ^ a b Clean Air Act, 42 U.S.C. § 110 (1970).
- ^ Americans With Disabilities Act of 1990. Pub. L. 101-336. § 102 (1990).
- ^ Americans With Disabilities Act of 1990. Pub. L. 101-336 § 226 (1990).
- ^ "Tax Incentives for Improving Accessibility." ADA Tax Incentives Packet. Web. 17 Apr. 2012. <http://www.ada.gov/archive/taxpack.htm>.
- ^ "Facts About the Americans with Disabilities Act." US EEOC Home Page. 9 Sept. 2008. Web. 5 Mar. 2012.
- ^ "Medicaid in New York State." Medicaid. Mar. 2012. Web. 5 Mar. 2012. <http://www.health.ny.gov/health_care/medicaid/>.
- ^ "Financing & Reimbursement | Medicaid.gov." Medicaid.gov. Web. 5 Mar. 2012. <http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Financing-and-Reimbursement/Financing-and-Reimbursement.html>.
- ^ "Medicaid Financing: How the FMAP Formula Works and Why It Falls Short" (PDF). Archived from the original (PDF) on 2017-04-08.
- ISSN 0362-4331. Retrieved 2023-02-17.
- ISBN 978-1483301730.
- ^ Schaffner, Dana E. (28 September 2005). "EMTALA: All Bark and No Bite" (PDF). University of Illinois Law Review. 2005 (4): 1024–1033.
- PMID 23158449.
- ^ a b No Child Left Behind Act, 20 U.S.C. § 1001 (2001).
- ^ a b No Child Left Behind Act, 20 U.S.C. § 1111 (2001).
- ^ No Child Left Behind Act, 20 U.S.C. § 1003 (2001).
- ^ St. George, James R. "Unfunded Mandates: Balancing State and National Needs." Brookings Review Apr. 1995.[1][dead link]
- ^ Hacker, Will. "Village to Fight Against Unfunded U.S. Mandates." Chicago Tribune 15 Oct. 1993. Print.
- ^ a b c Wellman, Nola. Unfunded Mandates Reduce Efficiency; Local Control Improves Effectiveness. Print.[ISBN missing]
- ^ Cockriel, Thomas. "House Subcommittee Holds Hearing on the Unfunded Mandates Reform Act of 1995" Penn Law. 25 Feb. 2011. Web. 08 Apr. 2012. http://www.law.upenn.edu/blogs/regblog/2011/02/house-subcommittee-holds-hearing-on-the-unfunded-mandates-reform-act-of-1995.html.
- ^ "Unfunded Mandates." Citizens' Committee for an Effective Constitution. New Roosevelt Foundation, Inc. Web. 08 Apr. 2012. <http://effectiveny.org/issue-summary/Unfunded-Mandates>.
- ^ Talbert, Kent. "No Child Left Behind Act: Not an "Unfunded Mandate"" Court Cases : Education Law Review : Elementary & Secondary School Legislation, Charter Schools & Unfunded Mandate: Kent Talbert & Rober Eitel Lawyer & Attorney. Talbert & Eitel, 21 June 2010. Web. 08 Apr. 2012. http://www.educationlawreview.com/k-12-education/court-cases/.
- ^ a b c S. 1, 104th Cong., U.S. G.P.O. 25 (1995) (enacted). Print.
- ^ "Summary of the Unfunded Mandates Reform Act." EPA. Environmental Protection Agency. Web. 09 Apr. 2012. <http://www.epa.gov/lawsregs/laws/umra.html>.
- ^ a b c d e f Dilger, Robert J., and Richard S. Beth. "Unfunded Mandate Reform Act: History, Impact, and Issues." CRS Report for Congress (2011). Web.
- ^ S. 1, 104th Cong., U.S. G.P.O. 25 (1995) (enacted). Print. Section 424(b)(1).
- ^ S. 1, 104th Cong., U.S. G.P.O. 25 (1995) (enacted). Print. Section 424(a)(2)(C).
- ^ S. 1, 104th Cong., U.S. G.P.O. 25 (1995) (enacted). Print. Section 204(a).
- ^ S. 1, 104th Cong., U.S. G.P.O. 25 (1995) (enacted). Print. Section 203(a).
- ^ "H.R. 50: Unfunded Mandates Information and Transparency Act of 2015". GovTrack. Retrieved 9 February 2015.