Showing papers in "Publius-the Journal of Federalism in 2007"

The Politics of Coercive Federalism in the Bush Era

Abstract: During the period of the Bush Presidency, the federal government proceeded to centralize and nationalize policy in major areas formerly controlled by states and localities. The extension of federal goals and standards to such areas as education testing, sales tax collection, emergency management, infrastructure, and elections administration were among the areas of significant mandates and preemptions. The continuation of policy centralization in areas under a conservative and unified political regime shows how strong and deep the roots are for centralizing policy actions in our intergovernmental system. Over the past forty years, mandates and preemptions have become among the primary tools relied on by Congress and the president to project national priorities and objectives throughout the intergovernmental system (Kincaid 1990). The trends toward the use of coercive tools have proven to be durable and long lasting, albeit punctuated by episodes of reform. While the enactment of unfunded mandates reform in 1995 most certainly has led to some restraint, the underlying forces prompting national leaders to use these tools have proven to be persistent and compelling. The secular trends toward a more coercive and centralized federalism have survived the passage of both Republican and Democratic Administrations, as well as Democratic and Republican Congresses (Posner 1998). The beginning of the twenty-first century witnessed the marshalling of new political forces that might be expected to turn away from the instruments of coercive federalism. The ascendancy of George W. Bush to the presidency, in concert with a remarkably unified Republican control of the Congress, presaged a period of unified government presided over by unprecedented conservative political leadership not seen since before the Great Depression. Coupled with the earlier passage of Unfunded Mandate Reform Act as one of the first acts of the 1995 conservative Republican Congress, hopes for the arrest and even reversal of federal policy centralization ran high in many quarters. This article will explore whether the ascendance of the conservative regime in the White House and the Congress, coming on the heels of the unfunded mandates reform, made a significant difference in reversing the trends toward coercive federalism characterizing previous administrations and congresses. It will first offer

The Middle Tier in American Federalism: State Government Policy Activism During the Bush Presidency

Abstract: Demarcations and assessments of particular periods of American federalism typically focus attention on national–state relationships, and ignore the independent activities of the 50 states. Labels applied to a period are often based on the federalism stance taken by a president. One can think of Lyndon Johnson’s ‘‘creative federalism,’’ Richard Nixon’s ‘‘new federalism,’’ and Ronald Reagan’s ‘‘new, new federalism.’’ President George W. Bush, unlike some of his recent predecessors, has not proclaimed his own distinct vision of federal relationships, and consequently efforts to describe and assess the character of federalism during his administration must rely on a review of policy actions (or inactions). Because a sole focus on national–state relations ignores the ability of state governments, either singly or in combination, to adopt policies different from those of the federal government, it is also necessary to examine this independent policy activism as part of any assessment of an era in American federalism. This article begins with a discussion of state government response to the centralizing thrust of Bush policy proposals and his reversal of his party’s previous stance supportive of states’ rights. To capture more fully the condition of federalism during the Bush presidency, the analysis then moves to an examination of independent policy action by state governments, or what Elazar (1972, 174) termed ‘‘federalism without Washington.’’ The essay concludes with an effort to explain how and why the ‘‘middle tier’’ in American federalism has been so assertive during the George W. Bush presidency.

Intergovernmental Grants: A Formal Model of Interrelated National and Subnational Political Decisions

Abstract: Intergovernmental grants are based on the interrelated choices of: (i) the national government deciding whether to offer the grant; (ii) the national government determining grant conditions; (iii) the subnational government deciding whether to accept the grant; and (iv) the subnational government determining policy, including spending levels, upon grant receipt. Empirically and theoretically, scholars often study these decisions separately, leading to an incomplete understanding of grant-related behavior. This article develops a noncooperative game theoretic model that simultaneously captures all four of these decisions. This approach helps to better explain puzzles surrounding intergovernmental grants, including the 'flypaper effect,' asymmetric responses of recipient governments to grant increases and decreases, the grant-acceptance decisions of subnational governments, and tradeoffs between the size of grants and the strings that are attached. Copyright 2007, Oxford University Press.

Environmental Policy and the Bush Era: The Collision Between the Administrative Presidency and State Experimentation

Abstract: The Bush administration entered office in 2001 pledging to support active collaboration with states in environmental protection and pursued this approach in some early initiatives and appointments. This emphasis was rapidly abandoned, however, in favor of an effort to recentralize oversight in a manner consistent with historic attempts to establish an administrative presidency model. In response, states have demonstrated that they are not prepared to take a back seat to the federal government, probing for areas to pursue innovative opportunities at the same time that they challenge any instances of federal overreach or disengagement that they deem problematic. The result has been a steady increase in intergovernmental conflict from the previous decade.

To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada

Abstract: Although the federal comprehensive land claims (CLC) process has become an almost hegemonic paradigm of government-Aboriginal relations in Canada, this article argues that Aboriginal groups should consider abandoning the CLC process if they have not been able to make significant progress towards completing treaties. Previously, many Aboriginal groups had no better option but to negotiate CLC treaties to achieve their goals. Now, however, a number of institutional developments have given Aboriginal groups a range of other options that are worth pursuing instead of CLC treaties. These developments are: Two judicial decisions handed down in 2004 and the emergence of three policy instruments outside of the treaty process: Self-government agreements, bilateral agreements, and the First Nations Land Management Act.

Decentralization and Fiscal Discipline in Sub-national Governments: Evidence from the Swiss Federal System

Abstract: This article analyses the relationship between decentralization and the extent of fiscal discipline in the Swiss cantons between 1984 and 2000. From a theoretical point of view, decentralization and federalism can be associated with both an expansive and a dampening effect on government debt. On the one hand, decentralized structures have been argued to lead to a reduction of debt due to inherent competition between the member states and the multitude of veto positions which restrict public intervention. On the other hand, decentralization has been claimed to contribute to an increase of public debt as it involves expensive functional and organizational duplications as well as cost-intensive, often debt-financed, compromise solutions between a large number of actors that operate in an uncoordinated and contradictory way. Our empirical results show that in periods of prosperous economic development, the architecture of state structure has no impact on debt. However, the degree of decentralization influences debt in economically poor times: In phases of economic recession, administratively decentralized cantons implement a more economical budgetary policy than centralized Swiss member states.

Rebels and Their Causes: State Resistance to No Child Left Behind

Abstract: The formal state resistance to No Child Left Behind (NCLB) may surprise scholars of federalism, who have generally found that states rarely resort to legislative and legal challenges to federal regulation. This article considers that factors influence states’ level of resistance to NCLB. Using an original data set, I estimate a series of ordered logit models with a dependent variable measuring state legislation and legal action against NCLB and find that states with lower poverty rates and a larger Hispanic population offer greater resistance. The discussion uses these results to suggest five factors towards which scholars may look to predict future formal challenges.

Education Accountability as a Presidential Priority: No Child Left Behind and the Bush Presidency

Abstract: In his visit to a North Carolina school that had shown significant improvement in October 2006, President George W. Bush proclaimed that the No Child Left Behind Act of 2001 (NCLB) was a success. "The gap is closing," said the President, "How do we know? Because we're measuring." (Fletcher and Baker 2006). The President's remarks referred to two key features of the federal legislation. First, states are required to test students annually in grades three through eight in reading and mathematics. Second, schools, districts, and states are required to report student achievement by racial, income, and other special needs subgroups, when their enrollment meets a certain state-determined threshold. In his response to reporters' questions three weeks prior to the midterm election, President Bush underscored that the reauthorization of NCLB is "a top priority of mine." He went further to say that, "And it's not only just the reauthorization, it's the strengthening of the bill and not the weakening of the bill." (Fletcher and Baker 2006). Bush's personal commitment to NCLB is indicative of the law's institutional importance. Indeed, NCLB provides the basis for assessing the federal role in education.

Political Power, Fiscal Crises, and Decentralization in Latin America: Federal Countries in Comparative Perspective (and some Contrasts with Unitary Cases)

Abstract: What factors shape decentralization processes in Latin American federations? This work reviews and statistically analyzes current approaches on the topic, questions some claims of generality in their theoretical frameworks, and presents an argument to explain variation in decentralization processes across these federations. The main hypothesis is that the degree of decentralization (in fiscal and administrative terms) in Latin American federations has been shaped by the political power of the national executive and sub-national actors and the fiscal context in which they interact. The article presents statistical evidence (for federal and unitary countries between 1979 and 1998) to sustain some of the expectations in the argument and discusses some of its limitations.

Challenges to Federalism: Homeland Security and Disaster Response

Abstract: This article examines the state of federalism in the Bush Administration from the perspective of the policy area of homeland security and disaster response. The article uses the International City and County Management Association homeland security survey completed in the spring and summer of 2005 as a source of data. The article argues that while it is tempting to look for one single agency to control homeland security and disaster response, a networked model is better supported by the survey data and by recent experience in terrorist and natural disaster response. Copyright 2008, Oxford University Press.

A Critical Survey of Subnational Autonomy in African States

Abstract: This article examines the quiet yet pervasive transfer of power from central governments to subnational units in Africa since the early 1990s. Central governments have justified this trend by arguing it promotes one or more of three goods: democracy, development, and accommodating diversity. The authors survey six selected countries representing federal-unitary and regional differences to evaluate their degree of formal and substantive political, administrative, and financial autonomy. Transfer of powers to subnational units, the authors conclude, is a real and nearly universal trend. However, many central governments have clawed back this grant of power in numerous ways, which led to an informal recentralization of power. Moreover, central governments of federations have deliberately strengthened local government at the expense of regional autonomy. Copyright 2008, Oxford University Press.

Federalism, the Bush Administration, and the Transformation of American Conservatism

Abstract: Most recent Republican presidents have proposed signature federalism initiatives intended to devolve power or sort out federal and state functions. The Bush administration has not propounded an explicit federalism policy of this sort, but its approach to federalism can be gleaned from analyzing presidential advocacy of legislation and constitutional amendments, fiscal policies, administrative actions, and judicial policies. What emerges from this analysis is an administration that has been surprisingly dismissive of federalism concerns and frequently an agent of centralization. In one sense, Bush is merely the latest in a string of presidents who have sacrificed federalism considerations to specific policy goals when the two have come in conflict. However, the administration's behavior is somewhat surprising, given the president's background as a governor and the fact that he has been the first Republican president to enjoy Republican control of Congress since 1954. Our explanation for the Bush approach begins with the president's lack of any philosophical commitment to federalism and explores the changing status of federalism concerns within conservative ideology. Any explanation for the Bush approach should account for this shifting political dynamic, which has seen Republicans in recent years become increasingly supportive of exerting federal authority on behalf of their economic and social objectives, encouraging Democrats at times to become more supportive of state authority.

Dispersed Federalism as a New Regional Governance for Homeland Security

Abstract: State and local officials complain about their lack of involvement in disaster plans issued by the Department of Homeland Security (DHS). Their complaints point to a common theme: the reorganization that produced the DHS complicated shared governance. States and localities carry out most of the work of homeland security, but the federal government's guidelines and grants shape much of what subnational governments do. This article offers an interpretation of the complaints of emergency management officials and a proposal for dispersing federal homeland security personnel and resources out of Washington, DC, to FEMA regions. Dispersing federal agencies to the regions they oversee offers an alternative to pure centralization and decentralization that combines the task and location specificity of major approaches to federalism.

Constructing Self-Enforcing Federalism in the Early United States and Modern Russia

Abstract: All federal systems face the two fundamental dilemmas of federalism: too strong a center risks overawing the subnational units; and too weak a center risks free-riding that makes the system fall apart. Resolving the two dilemmas is problematic because mitigating one dilemma exacerbates the other. We develop a model of federal institutions that shows the circumstances under which both dilemmas can be solved so that federal institutions are self-enforcing. We apply our approach to modern Russia where we suggest that when the center is too strong, its ability to extract rents increases and the benefits for maintaining participation in the federal bargain disappears. We also suggest strong parallels between Russia and those of the early United States under the Articles of Confederation. Copyright 2007, Oxford University Press.

Changing State Fiscal Capacity and Tax Effort in an Era of Devolving Government, 1981-2003

Abstract: The American system of fiscal federalism requires that state and local governments finance the bulk of their budgets from own-source revenues, not transfers This article analyzes state total taxable resources from 1981 to 2003 to evaluate how state fiscal capacity has changed in that time and how it has been affected by national recessions, to examine the extent to which fiscal capacity differs among states and whether capacity has converged, and to consider whether states have responded to service demands by changing tax effort and whether tax effort has converged in the face of interstate competition and other harmonizing forces Because the capacity measure employed here can be compared across years, something impossible with major alternative indices, the analysis provides insights important to the analysis of fiscal federalism and of the implications of revenue devolution not previously possible

The State of American Federalism 2007–2008: Resurgent State Influence in the National Policy Process and Continued State Policy Innovation

Abstract: States played a prominent role in policy-making in 2007-2008 in several respects. States were more successful in securing relief from federal directives regarding the National Guard, homeland security, education, and welfare than in any prior year in the Bush presidency; they were unable to fend off several new mandates, however, particularly concerning the State Children's Health Insurance Program. States also continued to be the primary innovators in areas such as immigration, environmental protection, and health care, although they encountered new constraints in the form of federal court challenges and agency rulings. The Supreme Court made no notable contributions to the post-1992 decisions that initially curbed and recently deferred to federal power; however, several rulings interpreting federal statutes and reviewing state acts had important federalism implications.

Political Economy of Grant Allocations: The Case of Federal Highway Demonstration Grants

Abstract: This article examines the political economy of U.S. federal highway demonstration grant allocations. Demonstration grants are a rapidly growing segment of federal highway grants directly earmarked for a congressional district by Congress, unlike the majority of highway grants where Congress determines a formula and allocates funds accordingly to states. Our empirical analysis, considering the period 1983-2003, suggests that a state's ability to attract demonstration project grants is positively influenced by its contributions to the highway trust fund and political variables, and it is not affected by the formula highway aid and vehicle miles traveled in a state. Copyright 2008, Oxford University Press.

The Changing Face of Welfare during the Bush Administration

Abstract: Most scholars of American social policy do not associate significant change in welfare policy with the presidential administration of George W. Bush. No major welfare policy initiatives were passed during the first term of the Bush presidency. Welfare cash assistance caseloads have remained fairly constant since 2001. Block grant funding for state welfare programs has remained at $16.5 billion annually. The poverty rate has increased from 11.3 percent in 2000 to 12.6 percent in 2005, but the number of persons in poverty remains below the historic highs of the early 1990s (U.S. Census Bureau 2006b). 1 Compared to the War on Terror, tax cuts, budget deficits, and Medicare drug coverage, welfare and poverty simply have not been prominent issues in the minds of the public or many policymakers. 2 In fact, references to contemporary welfare reform are often associated with the Clinton administration. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), commonly referred to as welfare reform, was a key domestic policy achievement for the Clinton administration and the 104th Congress. PRWORA required work as a condition of assistance, limited lifetime welfare receipt to five years, and expanded state discretion over welfare program administration. Due to welfare reform and unprecedented economic growth, welfare caseloads decreased by 60 percent during the Clinton Presidency and the national poverty rate fell by one quarter, from 15.1 percent to 11.3 percent. The promise to ‘‘end welfare as we know it,’’ has become one of President Clinton’s most lasting domestic policy legacies. Several important shifts in welfare policy, however, have occurred under the Bush administration. Some change in welfare followed explicit policy proposals from the Bush administration, other changes started before 2001 and simply became manifest after President Bush took office. First is arguably one of the biggest changes in the history of American welfare policy: the shift from a welfare system that predominately delivered assistance through welfare checks to

Election Reform after HAVA: Voter Verification in Congress and the States

Abstract: Requiring voting machines to produce a voter-verifiable paper record (VVPR) has been the most prominent election reform issue in Congress and across the states since the Help America Vote Act (HAVA) of 2002. Whereas HAVA emerged from a bipartisan process that included cooperation and input from state and local government officials, VVPR legislation represents a more coercive brand of federalism that has divided the parties and evoked opposition by state and local government organizations. Meanwhile, twenty-nine states adopted the VVPR from 2003 to 2007. Using a logistic regression model, informed by a theory of state policy activism, we find that adoption of VVPR legislation was most likely in states with moralistic political cultures, election reform activists, and professionalized legislatures controlled by Democratic majorities.

Federal Administrative and Judicial Oversight of Medicaid: Policy Legacies and Tandem Institutions under the Boren Amendment

Abstract: Because of the active role assumed by the courts in Medicaid nursing facility reimbursement, and because that role changed over time, federal intervention in this area provides a useful window through which to examine the role of the federal judiciary in oversight of state health policy making. Findings support the proposition that because judicial influence extends beyond program outcomes to include the organizational structure and beliefs of key stakeholder groups, the effects of case decisions, and the statutes under which they are litigation, may be deeper and longer lasting than their usefulness as a litigation tool. Findings also support the proposition that neither the executive nor the judiciary acts in isolation but instead they serve as tandem institutions guiding federal oversight of state policy making. Data for this analysis derive from archival documents, secondary sources, and 101 in-depth interviews.

Valuing Exit Options

Abstract: This article examines an important aspect of federalism: the effect of a secession threat on the union's productivity. Productivity requires a compliance maintenance regime with credible punishment. An exit option gives a government the alternative of opting out of the union rather than suffer the disutility of a punishment. Equilibria are characterized over a continuous range of exit option values. The results indicate that only exit options that are superior to union membership improve utility; those of moderate value decrease net and individual government utility due to their harmful effect on compliance maintenance. A prescription that emerges from these results is that if the exit option is inferior to the benefit from a thriving union, member governments should voluntarily submit to measures that make exit as costly as possible. Copyright 2007, Oxford University Press.

Public opinion on issues of federalism in 2007: A bush plus?

Abstract: A 2007 trend survey revealed more Americans saying that the federal government gives them the least for their money and has too much power. The proportions citing high trust in the federal government and saying the federal government needs more power were low. The proportions holding positive attitudes toward state and local government were high, though local government scored best on most questions. More than half of Americans reported that their state is treated with the respect it deserves in the US federal system, compared with less than half of Canadians stating the same about their province. Slightly more than half of the US public judged three major federalism actions of President George W. Bush to have been helpful to state and local governments.

Montesquieu on Federalism and Anglo-Gothic Constitutionalism

Abstract: The common perception that Montesquieu is not a major theorist of federalism is due both to the peripheral nature of his account of confederate republics and his praise of the unitary British Constitution in the Spirit of the Laws. This study challenges this view by arguing that, despite his endorsement of the separation of powers, Montesquieu had serious reservations about England's highly centralized system of parliamentary sovereignty. Moreover, his most significant reflections on federalism were not contained in his brief treatment of confederate republics, but rather in his lengthy consideration of Gothic constitutionalism. I conclude that Montesquieu's complex constitutional theory involves two distinct dimensions including both the separation of powers exemplified in England and the federal principles in the decentralized Gothic system of medieval France.

Towards an Integrated Model of the U.S. Supreme Court's Federalism Decision Making

Abstract: Disputes involving the boundaries of state versus federal power make up a substantial portion of the U.S. Supreme Court’s docket and have undergone extensive analysis. Yet, the conventional wisdom regarding the justices’ choices in these cases is that they are highly inconsistent. I argue that this is primarily a function of the failure of scholars to develop a comprehensive model of the justices’ federalism decision making. To remedy this, I introduce an integrated model of the individual justices’ choices in these cases, which is then subjected to empirical testing in the Rehnquist Court era (1986^2004). I explore a host of determinants of the justices’decision making, including attitudinal, institutional, legal, and personal attributes, as well as the role of organized interests in the Court. The findings reveal that the choices justices make in these cases are not as discordant as most commentators suggest. Rather, they are relatively predictable through the application of an integrated model of judicial choice. Each term, U.S. Supreme Court justices adjudicate disputes implicating the limits of federal versus state power. Through these federalism decisions, the justices are charged with determining the proper balance between the authority of states to operate as sovereign entities, free from federal interference, and the expansiveness of the federal government’s reach under the Constitution. The importance of this debate is perhaps no more evident than in scholarly analyses of the Rehnquist Court’s so-called ‘‘federalism revolution,’’ in which the justices, under the leadership of Chief Justice Rehnquist, are argued to have reinvigorated the concept of taking states’ rights seriously to a level that had not been witnessed since before the New Deal (Chen 2003; Greenhouse 2001; Pickerill and Clayton 2004). In so doing, the Rehnquist Court appeared to breathe new life into conspicuously long-forgotten constitutional provisions involving federalism as it struck down federal laws involving a wide range of social policies, including the regulation of firearms on school property (United States v. Lopez [1995]), violence against women (United States v. Morrison [2000]), and the free exercise of religion

Congressional Preemption During the George W. Bush Administration

Abstract: President Bush approved 64 preemption acts during 2001-2005. Fifteen acts were responses to the September 11, 2001, terrorist attacks, and five acts extended sunset provisions. The other acts removed specified powers from states in the fields of banking, commerce, energy, environmental protection, finance, foreign commerce, health, intellectual property, safety, taxation, telecommunications, and transportation. Only the two Internet taxation prohibition acts have a major impact on state governments by depriving them of billions of dollars in tax revenues that could be used to exercise their reserved powers. The other acts are minor ones on the periphery of state exercised powers compared to laws enacted in the period 1964-1999.

At the Invitation of the Court: Eminent Domain Reform in State Legislatures in the Wake of the Kelo Decision

Abstract: The Supreme Court's 2005 Kelo decision upholding a condemnation of private property for economic development purposes sparked a wave of reform legislation in state legislatures. However, there is considerable variation in the extent to which state legislatures restricted the power of eminent domain. This article seeks to account for this variation. It tests hypotheses drawn from the literature on state responses to Supreme Court decisions and research on factors shaping state policy change in the wake of federal actions more generally. The results show support for an organized interests explanation, a need/scope of the problem explanation, and some elements of an explanation featuring institutional characteristics of the state legislature; there are mixed findings with respect to the role of public ideology.