April 4, 2009
Sebelius(es) on Federal Burdens on States
Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American Constitution Society, titled Bearing the Burdens of the Belway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century. The piece is a very practical (i.e., non-theoretical) review of federal-state relations over the past eight years from the perspective of a (Democratic) governor implementing federal mandates ofa (Republican) Congress and President.
The authors argue that federal mandates during the early twenty-first century are overwhelming the states, especially in the current economic crisis. Moreover, the types of federal bullying--failing to repay states for implementing federal program requirements, and setting caps, not floors, on state policy initiatives--are particularly burdensome and hamstring those states that seek to take initiative in areas where thefederal government dropped the ball.
They argue that federal strings in any single program may amount merely to "coercion" (acceptable under South Dakota v. Dole), when taken together unfunded federal mandates amount to compulsion.
The authors look at No Child Left Behind, SCHIP, and the State Criminal Alien Assistance Program and REAL ID to bring a very practical perspective to federal state relations.
The article is unselfconsciously political, but that may make it all the more interesting an illustration of a governor's perspective on federal mandates. It'll be especially interesting to see how this perspective informs the likely Secretary Sebelius, as she takes charge of an agency with many and varied cooperative federalism programs.
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