State Sovereignty in the Federal System: Constitutional Protections Under the Tenth and Eleventh Amendments

The U.S. Supreme Court has held that state sovereignty is protectedby principles of common law rather than explicit constitutionalguarantees under the Tenth and Eleventh Amendments. The Courthas also cautioned that congressional actions, even under delegatedpowers, may not threaten the integrity of states as sovereignentities in the federal system. The National League of Citiesdecision in 1976 appeared to reverse this doctrine by implyingthe existence of Tenth Amendment protections of state actionsin traditional functional areas. However, the federal courtsdiscounted the NLC ruling as a compelling precedent in subsequentfederalism cases because of its vagueness and its fundamentalinconsistency with established doctrine. In 1985, the SupremeCourt overturned the ruling in Garcia v. San Antonio, reaffirmingthe common law nature of state sovereignty and arguing thatconstitutional protection of state interests lies primarilyin the representative structure of the federal system ratherthan in specific constitutional guarantees.     

The Rehnquist Court and Federal Preemption: In Search of a Theory

In the 1980s, the U. S. Supreme Court was expected to becomemore solicitous of "states' rights" and to reconsider doctrinesof federal preemption of state and local laws. Those expectationswere built on the Court's ruling in National League of Citiesv. Usery and reinforced by the Reagan administration's rhetoricand Court appointments. The record ofthe Rehnquist Court, however,demonstrates that it has backed away from vigorously enforcingthe Tenth Amendment and has erected only minor constitutionalbarriers, as in New York v. United States, to the Congress'power over the states. Moreover, the Court has not retreatedfrom finding implied statutory preemptions or from imposingits own dormant-commerce clause power on the states. The articleconcludes by considering a number of explanations for the Court'srecord and rulings on federal preemption.     

The Road to South Carolina: Intergovernmental Tax Immunity and the Constitutional Status of Federalism

In South Carolina v. Baker the Supreme Court struck a powerfulblow at constitutional federalism. As a result of this landmarkcase, the question of whether issuing tax exempt bonds is asovereign right of the states or a privilege they are accordedby the national government has been settled. Relying in parton precedent from Garcia, the Court determined that immunityis not a right under the Tenth Amendment. In addition, SouthCarolina established a new doctrine of intergovernmental taximmunity which formally accords superior powers to the nationalgovernment. Taken together, these results have implicationsfor the future course of intergovernmental fiscal policy aswell as the basic character of the relationship between thenational and state and local governments.     

Garcia and the Political Safeguards of Federalism: Is There a Better Solution to the Conundrum of the Tenth Amendment?

In Garcia v. San Antonio Metropolitan Transit Authority (1985),Justice Harry Blackmun held that the Tenth Amendment does notprevent the Congress from subjecting state and local governmentsto the provisions of the Fair Labor Standards Act, concludingthat the "political safeguards offederalism" are generally adequateto protect state interests on the national scene. This articleexamines the intellectual foundations of the "political safeguardsof federalism" and finds them inadequate. It then surveys thepost-Garcia scholarship to ascertain whether an alternativetheory of the Tenth Amendment has emerged. Concluding that ithas not, the author suggests the need for afresh approach inview of the hints contained in Justice Sandra Day O'Connor'sopinion in Gregory v. Ashcroft (1991) that five justices maybe ready to reexamine the central thesis of Garcia.     

Developments in the Law: Garcetti v. Ceballos and the Workplace Freedom of Speech Rights of Public Employees

On May 30, 2006 the Supreme Court handed down a 5–4 decision in the case of Garcetti v. Ceballos, announcing that "when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Previously, the Court had held in Pickering v. Board of Education (1968) that the First Amendment's protection of freedom of speech generally prohibited public employers from firing or disciplining employees for speaking out on matters of "public concern." The Pickering decision established a two-part test that first required federal courts to determine whether the employee had spoken out on a matter of public concern and then whether the disruptive impact of the employee's statement justified the disciplinary action. This article argues that the Garcetti decision may deter many public employees from disclosing governmental inefficiency and misconduct and presenting dissenting viewpoints on matters of clear public concern. Consequently, the decision may make it more difficult for the leadership of public agencies to uncover inefficiency and misconduct.     

An Intellectual Crisis in American Federalism: The Meaning of Garcia

In National League of Cities v. Usery (1976), the U.S. SupremeCourt found that the Tenth Amendment requires the existenceof a set of essential state powers that remains beyond the reachof congressional regulation or preemption. The Court reverseditself in Garcia v. San Antonio Metropolitan Transit Authority(1985), holding that the Tenth Amendment provides the Courtno basis on which to limit the Congress in the exercise of itscommerce powers. We argue that, although contradictory, bothholdings can be inferred validly from the U.S. Constitution.This absurd result reveals profound inconsistencies in the constitutionaldesign of federalism, requiring a constitutional solution. Thearticle concludes with a discussion of a variety of constitutionalremedies, including constitutional amendments.     

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Federalism jurisprudence shapes the powers that public administrators have to achieve policy priorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding of the environment in which public administrators work rests on a careful analysis of U.S. Supreme Court decisions. The authors review claims that a 2005 decision, Gonzales v. Raich, terminated a federalism revolution that had been ushered in a decade earlier. Does Raich in fact mark the end of the Supreme Court's federalism doctrine? Analysis of this question clarifies whether the past and current Court has articulated any direction touching on administrators' powers at both the national and state levels. The authors argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of jurisprudence for what is says about the foundations of federalism such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment, spending clause, and statutory interpretation issues.     

Federalism and the Constitutional Right to Keep and Bear Arms

Until recently, the federal courts agreed that the Second Amendmentprotects the interest of states in maintaining their own militias.In United States v. Emerson, the U.S. Court of Appeals for theFifth Circuit rejected this consensus, and held that the Constitutionprotects a right of private individuals to keep and bear arms.The fifth circuit's position is more plausible than the consensusview, and the arguments for treating the Second Amendment asa kind of federalism device are weak. A different set of federalismissues is raised by the prospect that the Supreme Court mightadopt the fifth circuit's position, and then take the next stepof applying the Second Amendment to the states through the FourteenthAmendment. Finally, Emerson shows how certain technical legaldoctrines that protect the dignity of he states can operateto strengthen the federal government's ability to undermineprotections afforded by the Second Amendment.     

The West German Federal Constitutional Court as Guardian of the Federal System

The West German Federal Constitutional Court has generally actedas a guardian of the German federal system. The Court has preventedattempts by the federation to encroach upon the modest autonomyleft to the Länder. If a national solution for a problemseems indispensable, the Court favors techniques that compensatethe Länder for a loss of autonomy by granting them certainparticipation rights. Guided by that principle, the Court'sconstruction of the Basic Law has increased considerably thenumber of federal statutes that require the approval of theBunesrat. Thus the Court emphasizes today the idea of partnership.However, in a 1986 decision, the Court made clear that a certainamount of federal leadership is needed to keep the system running.In this decision, the Court reminded the federation expresslyof its responsibility for the whole.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

The Impact of United States v. Lopez on Intergovernmental Relations: A Preliminary Assessment

The U.S. Supreme Court's decision in Lopez v. United States(1995) was the first occasion since the. 1930s where a congressionalact was overturned on the ground that its subject matter boreno perceptible relation to interstate commerce. The case maysignal significant change in the Court's federalism jurisprudence.Instead of looking mainly to the Tenth Amendment to find constitutionalsafeguards for the states, conservative justices may now identifycommerce-power limitations. The politics of the Lopez case suggestthat the Congress finds electoral advantages in federalizingcrime and is disinclined to sort out roles for different governmentsin law enforcement. Paradoxically, this pattern exists evenas the Congress is undergoing certain changes that may makeconsideration of basic constitutional issues more likely. Finally,this article demonstrates the weakness of public interest groupsin influencing federal policymaking in criminal law.     

Equality of Status, Inequality of Result: State Power and High-Level Radioactive Waste

American intergovernmental relationships are continually redefinedthrough political processes by which the state and federal governmentsseek to achieve their respective policy goals. Following a summaryof the development of federal policy for the disposal of high-levelradioactive waste (HLW), federal court cases that have resultedfrom the selection of Nevada as the nation's host for a HLWrepository are discussed. The cases raise, in a unique way,questions regarding the equality of states' power in the contextof constitutional principles such as the equal footing doctrine,the privileges and immunity clause, and the Tenth Amendment.Questions are also raised regarding the ability of states tosafeguard their interests in the political arena as describedin Garcia.     

Limiting State Involvement in Foreign Policy: The Governors and the National Guard in Perpich v. Defense

The National Guard is a largely successful intergovernmentalinstitution in the United States. In September 1989, however,the governor of Minnesota asked the U.S. Supreme Court to strikedown federal legislation that gives the Department of Defenseauthority to assign state National Guard units to active-dutyoverseas training without the consent of the governor. In Perpich(1990), the Supreme Court upheld the Montgomery Amendment allowingthe president to order members of a state's Guard to activeduty for training outside the United States even during peacetimewithout either the consent of the governor or the declarationof a national emergency. The Court did not address the factthat the president has ample authority under other statutesfor calling up the National Guard. The decision dealt only withthe authority for calling Guard units for two weeks of active-dutytraining. The practical effect of this interpretation of themilitia clauses of the U.S. Constitution is to reduce the states'authority for training to, at best, a ministerial function,even when Guard units are called up by the secretary of defenseonly for the purpose of training.     

Federal Intervention in the Municipal Bond Market: The Effectiveness of the Build America Bond Program and Its Implications on Federal and Subnational Budgeting

The American Recovery and Reinvestment Act of 2009 (ARRA) included several new federal programs intended ostensibly to “unfreeze” the credit markets as a result of the global financial crisis. One such program, the Build America Bond (BAB) program, aimed to lower the borrowing costs for state and local governments by increasing their access to capital and providing a more generous federal subsidy than the traditional indirect tax exemption subsidy. BABs are taxable bonds sold by subnational governments, which carry a 35 percent direct federal payment subsidy to the borrower. In creating this program, the federal government hoped that the large direct federal subsidy along with greater potential investor interest in taxable securities would result in lower borrowing costs for state and local governments vis‐à‐vis traditional tax‐exempt bonds. This research study examines the relative effectiveness of the BAB program and details the various quantitative and qualitative implications on federal and subnational budgeting by moving from an indirect to a direct federal subsidy approach in facilitating state and local government capital raising.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Effects of Federal Tax Reform on Local Finances

The federal Tax Reform Act of 1986 promised to be fair, simple,and revenue neutral to the federal treasury. Tax reform, however,was not revenue neutral with respect to all state and localtreasuries. Indeed, tax reform entailed a restructuring of thebalance of power in federal-state-local relations. In particular,new restrictions on the tax-exempt bond authority of state andlocal governments are requiring significant shifts in traditionallocal debt policy. Furthermore, the Supreme Courts recent decision,South Carolina v. Baker, raises additional concerns about thestatus of state and local tax-exempt bond issues. The natureof future relations between the federal government and localgovernments is likely to be molded more by the federal tax codeand by erosion in state authority over fiscal matters than byfederal grant-in-aid programs of the kind that have characterizedthe past quarter century of intergovernmental relations.     

Public Opinion on Federalism in Canada, Mexico, and the United States in 2003

This research reports on public opinion surveys on intergovernmentaland federal issues conducted in Canada, Mexico, and the UnitedStates in March and April 2003. In all three countries, respondentsmost often see their federal government as being the least effective,least efficient, and least trustworthy. Respondents from Canadaappear least supportive of their federal government and mostsupportive of their local governments; those from Mexico appearmost supportive of their state governments; respondents fromthe United States appear more "balanced" in their support ofthe various orders of government. Also, far greater regionaldifferences in opinion exist in Canada than in Mexico or theUnited States. Support for more decentralized federalism isfound to be strong in all these federal countries. This researchalso updates long-term trend data for the United States. Comparedwith respondents from previous years, U.S. respondents in 2003showed a measurable uplick in support for the federal government,compared with state and local governments. This support seemsto be a carryover from the terrorist attacks of 11 September2001.     

Intergovernmental Structure and Fiscal Management Strategies: A Crossnational Analysis

Does intergovernmental structure have a systematic effect on the impacts of local governments' fiscal policy responses? Using empirical data from more than 800 local governments in five countries, the article concludes that intergovernmental structure is associated with the impact attributed to various fiscal management strategies. Such strategies have generally had greater impact in local governments in federal systems than those in unitary state systems. There are similarities between federal and unitary local governments regarding the fiscal management strategies that have least impact, and both types stress the importance of productivity gains via technology. But the differences in relative importance and level of impact are more striking than the similarities. In particular, fiscal management strategies involving the relations of the local government with other governments, such as obtaining intergovernmental revenue and shifting service provision to other governments, have greater impact in significantly more federal systems than in unitary state systems. These federal local governments also experience greater impacts from increasing user charges and raising local taxes. In contrast, local governments in unitary state systems place greater reliance on the more politically expeditious strategy of across–the–board expenditure reductions and on reductions of capital spending. These findings suggest that local governments in more decentralized systems have greater flexibility to manipulate relations with other governments in order to enhance their own fiscal situation. The data also suggest that the government's level of fiscal stress is not systematically associated with the level of impact from most fiscal management strategies, especially in the unitary state systems.     

Unfunded Mandates and Fiscal Structure: Empirical Evidence from a Synthetic Control Model

An unfunded expenditure mandate occurs when governments are required to provide a good or service by a higher level of government without an accompanying revenue source. There are no empirical studies providing causal evidence on the fiscal influence of intergovernmental mandates. This article examines Florida's 1990 constitutional Amendment 3, which sought to limit unfunded state mandates on municipal and county governments. The synthetic control method, an empirical technique for drawing causal inferences from case studies, estimates the effect of Amendment 3 on state expenditures and total transfers to local governments. The results indicate that state expenditures increased by an annual average of 9.5 percent, while state transfers to all local governments were unaffected. However, the municipalities protected by Amendment 3 saw intergovernmental revenue from the state decrease by 10 percent annually, which suggests that remaining mandates likely targeted special districts, encouraging the fragmentation of local public service delivery.