Unfunded Mandates: An Unconstitutional Burden?

Posted By: Samantha Oswitch, Kate Montgomery, Jose Oliveros, Kelsey Nordahl, Gabriel Oquin, Andrew Moura, Taran Parker


Partisan rhetoric has warped our common understanding of the unfunded mandate. By definition, a federal law is not an unfunded mandate simply because the Federal Government wants the states to pay for it. This truth escapes those such as politicians and media pundits who wrongfully characterize certain federally funded laws and programs as unfunded mandates and who categorically denounce them as unconstitutional. An unfunded mandate is a federal statute or regulation which often accompanies a condition for the receipt of federal funds through actions a state or local governments undertake within specific programs where no additional funds to cover the mandated action are provided. The funded component of the statute is authority given by the Spending Clause which is controlled by the anti-coercion doctrine. The anti-commandeering doctrine created in New York v. United States falls under the regulating authority of the Interstate Commerce Clause. The unfunded mandate falls somewhere in the middle. Most rhetoric surrounding unfunded mandates cite New York v. United States (1992) and the Unfunded Mandates Reform Act, 2 USC §1501 (referred subsequently as “UMRA”) as the judicial and political limitations on unfunded mandates. Some opponents of the statute have stated that the Supreme Court decision made the statute unnecessary. However, there has been a long standing belief beginning with the Founders that the state and federal relationship should be decided by the people through the political sphere.


September 3, 1783, a nation emerged after enduring a bloody revolutionary war. Since its origin, the United States has often been a clash of ideologies. By all indications, this will continue until our nation fades into history. The ongoing debate includes what is the proper equilibrium between federal and state power? The answer is unsettled and for over two centuries this equilibrium has shifted back and forth repeatedly; if history is an indication, it will certainly shift again.

The Constitution is constructed on the notion that the equilibrium of power needs to tip in favor of the federal government. However, the question that the Founders grappled with, how expansive should the federal government’s power should be, is still at issue today. Disagreement between the Founders sparked a debate of whether there are powers reserved, or withheld, to the states in order to insure the equilibrium of power is not substantially one sided. In Federalist Paper No. 45, James Madison argues that a strong federal government will not destroy individual liberty as “the powers delegated . . . to the federal government are few and defined . . . [while those] which are to remain in the State governments are numerous and indefinite.” In Federalist No. 46 Madison states, “If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities.” The Framers believed that the people will determine how large or small the national federal government will be. Similarly, in Federalist Paper No. 84, Alexander Hamilton explained that a Bill of Rights was unnecessary and might be detrimental if it is interpreted to be a finite list. The 10th Amendment was the product of Anti-Federalist concern. It is argued that the amendment is the textual representation of the need to ensure the stability of the equilibrium, and is to serve as an independent limitation on the federal government’s enumerated powers. The opposite position, just as plausible, is that the amendment is redundant, and the system upon which the Constitution is founded will ensure the equilibrium between powers remains.

For over two centuries this debate has raged. It has shifted in favor of expansive federal power, then to expanding the state’s reserved power. Until recently, the shifts have been slow. More recently, the Supreme Court is playing ping pong with the ideologies. In 1976, the Supreme Court decided the National League of Cities v. Usery and established the equilibrium in favor of states reserve power limiting the enumerated powers of the federal government. They expressed that there are traditional state functions that the national government was not allowed to regulate.

This independent check was short lived, because in Garcia v. San Antonio Metropolitan Transit Authority (1985) the Supreme Court proclaimed the federalism doctrine held in National League of Cities v. Usery unworkable in the judicial arena. The principles established in Garcia contiued until the Supreme Court decided New York v. United States in 1992, resurrecting an independent check on the enumerated federal powers.

New York established the current law that the federal government can only encourage states to regulate in a particular desired manner; the federal government cannot compel states to regulate.. The rule established in New York raised questions about whether federal unfunded mandates are now unconstitutional and is explained in-depth in the subsequent section. In order to understand the pertinence of the question raised, a basic understanding of funded and unfunded mandates is required.


A funded mandate is an option given to the states expressing that if a state is willing to regulate in a certain manner, then the federal government will give the state (x) amount of dollars to implement the regulations. This is in full compliance with the New York ruling, because it allows the state a choice. The state can either receive the conditional extra money, by regulating in the manner prescribed by the federal government; or, refuse to regulate, and forfeit the money. An example of a funded mandate in the most basic terms is if a state regulates (A) then the state will get ($1,000) to fund that regulation. Unfunded mandates are essentially identical to those described, however, the government is no longer using a 1:1 ratio of benefit to regulation. (See Unfunded Mandates: Definition, Examples, Need for UMRA). The unfunded mandate adds another condition to the states: the federal government now requires the state to regulate (A) and (B) to receive the same ($1,000) to fund the regulations. An unfunded mandate may be viewed in two ways, the first is (A) and (B) are a package deal and the federal government is simply giving the states less money, but requiring more regulation. The alternative is the federal government is issuing two separate mandates, with (A) being the same scenario as the funded mandate, and (B) being a possible unconstitutional regulation of states under the New York rule.


In New York v. United States (1992), the United States Supreme Court found that the “take-title” provision of the Low-Level Radioactive Waste Management Act Amendments of 1985 violated the 10th Amendment. This Act was in response to the “not in my backyard” movement against low-level radioactive waste, which includes solid radioactive materials such as dead animals from laboratories that use radioactive elements and old water filters from nuclear power plants (Rutgers Fact Sheet). Residents in southwest New York were resistant to depositing nuclear waste in their counties and New York was unable to sell the radioactive waste to other states. They sought a declaratory judgement against the federal government. New York and its counties were not looking for enforcement but an authoritative opinion that the Act was inconsistent with the Constitution. However, the court raised sua sponte (on its own) the issue that the “take-title” provision in the Act is unconstitutional. Even though the plaintiffs did not intend for this, New York v. United States is currently one of the most influential court cases regarding the 10th Amendment and the power of Congress over states.

The first two provisions of the Act were held constitutional in the 6-3 ruling under the Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution. The first provision, “financial assistance,” was that a state could enforce a surcharge when disposing of other states’ waste. The Secretary of Energy placed the money in escrow, which was returned to the states if they built disposal sites by certain deadlines. This would not be a radioactive waste tax by the federal government as each state decided its own surcharge. This created an incentive for each state to build its own disposal site, since in theory that would be cheaper than “selling” it to states with a surcharge. The second provision was “access,” the surcharges were to increase every year. Therefore, states had a choice between not regulating “to federal standards and losing the right to a share of the Secretary of Energy’s escrow account; [or] to choose second between regulating pursuant to federal standards and progressively losing access to disposal sites in other states” (New York v. United States). Previous cases, such as Hodel v. Virginia Surface Mining and Reclamation, have upheld the power of Congress to create a system of incentives or preempt state law through the Commerce Clause and these two provisions of the Low-Level Radioactive Waste Act were similarly upheld, The legal question considered in New York v. United States was if the third and last provision of the Act was also constitutional.

The provision in question allowed states “to choose third between regulating pursuant to federal standards and taking title to the waste generated within the State” (New York v. United States). This “take-title” provision left states with a choice between accepting ownership of waste or enacting federal law at the state level. In the majority opinion, Justice Sandra Day O’Connor found that the third provision was unconstitutional under the anti-commandeering doctrine and the 10th Amendment.


The position the court has taken on coercion of the states through the Spending Clause has impacted Unfunded Mandates. One of the earliest and most influential stances on the matter was established by the Supreme Court in 1935 through United States v Butler. Butler was a controversy over the newly established Agricultural Adjustment Act which imposed taxes on agricultural goods so as to create a fund to subsidize farmers who agreed to being regulated. Here, the Court argued that the conditioning of government funds was an invasion of the state’s right to regulate and control their agricultural productions. Congress responded by citing the taxing and spending power found in Article 1 Section 8, claiming that it allowed them to appropriate these funds for the general welfare of the states.

However, the Court disagreed with Congress’ broad definition of general welfare. The court reasoned that those farmers who refused to regulation would be put at a disadvantage compared to those who received the government subsidies. As such, this act could effectively determine which producers would succeed and which would fail simply by controlling the market and allowing compliant farmers to undersell their competitors. The court held that while the taxing and spending power did allow for some federal control over funds offered to the state, the using of that power as a means to accomplish an unlawful end (in this case the invasion of state control over their agricultural production), rendered the act unconstitutional.

However this view was not universal, Justice Harlan Stone was joined by Justices Brandeis and Cardozo in the dissenting opinion. Stone posited that the power to tax and spend for the general welfare of the states should not be imposed upon in those cases where funds are provided on the condition that they are used in pursuit of this general welfare. Stone provided that the Government could give seeds to farmers but the Government was unable to condition the receipt of seeds with the planting of the seeds. Dissenters were frustrated by a contradiction of providing funds for the purposes of general welfare without actually conditioning the funds on their intended purpose.

Years later, a second landmark case on the topic of unfunded mandates and congress’ spending power by the Court. South Dakota v Dole was a conflict arising from the passage of the National Minimum Drinking Age Act in 1984. This act withheld 5% of federal highway funding from any state which did not adhere to the newly established drinking age of 21. South Dakota, who then allowed 19 year olds to purchase weaker alcohol, challenged the act. They claimed that the withholding of highway funds from the state was simply a coercive measure to force the states to comply, much like what was found in United States v Butler.

In examining this question the court used a multi-prong test to determine the constitutionality of qualified funding under the Spending Clause. The test put forth stated: the spending must be for the general welfare of the public; the conditions for funding must be unambiguous and must relate to the federal interests; the conditions themselves must be constitutional; and the condition must not be coercive in nature. In applying this test to the case at hand the court held that the National Minimum Drinking Age Act was not unconstitutional. More specifically, the court found that this act served the public welfare by ensuring that teens would not be encouraged to drive across state lines in pursuit of alcohol, potentially creating dangerous situations. This also served to relate the mandate to the funds being withheld, i.e. federal highway funding. Further, the increase of the minimum drinking age from 19 to 21 was unambiguous and easily followed by the states. Finally, while the condition may create incentive for the state to adopt the policy so as to receive the funds, the court reasoned that withholding a mere five percent of highway funding was not enough to rise to the level of coercion. While the reasons proffered by the majority for upholding this act in contrast to Butler are persuasive, they also create a very thin line for discerning between the two issues.

Not all Justices were persuaded by the holding in Dole, Justices Brennan and O’Connor filed separate dissents. O’Connor, while in disagreement with the majority, did not refute the test which provided the holding. Instead, O’Connor argues that the condition was not sufficiently connected to the federal interest and thus did not pass the test. She opines that by using the federal highway system as the medium for regulation, Congress could effectively create any connection they wanted as a result of the necessity of highway use for interstate trade.

Justice Brennan’s dissent falls much more in line with the original position of the court in Butler. Brennan dissents on the grounds that the regulation of minimum age requirements is a power reserved for the state, and that by attempting to coerce the states into following the federal regulation by withholding funds, they are using their spending power as a means to an unlawful end. This view almost perfectly mirrors the original opinion of the court in Butler, yet fifty years later only one justice seems resolute in upholding the court’s previous decision.

The anti-coercion doctrine is furthered in National Federation of Independent Business v. Sebelius. The Court held that the mandate on the states to expand their Medicaid programs or lose all of their Federal funding was coercive and therefore unconstitutional. The Court reaffirmed South Dakota v. Dole by distinguishing the five percent of highway funds to the large percent of state budgets which Medicaid makes up. The anti-coercion doctrine is the judicial limitation on Congress’ ability to condition funding through the Spending Clause. The anti-commandeering doctrine is the judicial limitation on Congress’ ability to require states to regulate.


Forcing states to choose between taking ownership of waste and enacting federal legislation is not a legitimate choice at all (New York v. United States). The Court holds that through the “take-title” provision, Congress was “commandeering” states by forcing them to be liable for low-level radioactive waste within their borders, which is unconstitutional as commandeering is not part of the enumerated powers of Congress and in violation of the “division of authority between Federal and State governments” (New York v. United States).

In the Constitution there are two instances of commandeering: (1) Congress may commandeer state militias under Article I, Clause 3 and (2) state courts are commandeered to carry out federal laws under the Supremacy Clause under Article 6, Clause 2. Justice O’Connor does not mention these example, but writes: “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions”(New York v. United States). That is misleading, as politically the federal government can preempt state law (Pennsylvania v. Nelson), while judicially state courts can be bound to enforce federal court rulings on federal statutes and the Constitution (Ableman v. Booth).

For Justice O’Connor, the “take-title” provision is unconstitutional as commandeering undermines political accountability. Federal officials can avoid voter accountability by making states enact and enforce regulations, insulating the federal government from the cost and unpopularity of a regulation. Lack of political accountability worries O’Connor, as the tension between state and federal governments is a check against tyranny. When costs are externalized, an actor is less likely to make efficient, cost-effective solutions. If Congress can commandeer States, it may force States to do something Congress itself would consider financially unjustifiable while protecting the federal officials from the political and financial ramification of those poor decisions. O’Connor concludes federal preemption of state law is compatible with political accountability, for preemption is “in full view of the public and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular” (New York v. United States). O’Connor’s model of public accountability is based on the idea that voters will not be able to understand federal compulsion, though voters may not be as uninformed as she presumes. Also, O’Connor offers “no justification as to the constitutional basis for this premise of democratic accountability” but instead relies on historical evidence that many of the Founders feared the Federal government would coerce States into implementing unpopular legislation (Chemerinsky).

The Spending Powers and regulatory abilities under the Commerce Clause do not give Congress the power to commandeer States into enacting federal legislation (New York v. United States). Congress has “the authority to regulate matters directly and to preempt contrary state regulation . . . [and if] a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents” (New York v. United States). The majority holding in New York does not explicitly hold unfunded mandates as unconstitutional since the Low-Waste Radioactive Materials Act is not explicitly considered an unfunded mandate in the opinion. Even though O’Connor emphasizes political accountability, funding amount is not considered nor the conflicting doctrine on federal interest. (See NLC v. Usery and Garcia v. SAMTA). Instead, the legacy of New York is in holding that Congress does not have the power to pass enforceable law in state legislatures. Therefore even though Congress can sometimes incentivize States to comply with federal law, Congress cannot mandate state regulation. New York does not solve the issue of unfunded mandates, In Justice Harlan’s dissenting opinion he writes that this is a delicate matter that should be addressed by those directly elected and not subjected to judicial intrusion (New York v. United States).


Forcing States to enact federal legislation violates the 10th Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.” The 10th Amendment historically has not been held to be an independent limitation on Congressional power. In McCulloch v. Maryland (1819), the Supreme Court held that the 10th Amendment is not an independent check. Several subsequent cases continued the idea that the Amendment in-and-of-itself was not an independent check for the states. Historically, when the Court questions whether a claimed federal power is actually delegated to the national government by the Constitution, it looks at the enumerated powers, not the 10th Amendment.

For a short period of time, a doctrine emerged which appeared to give teeth to the 10th Amendment. However, doctrine was short lived and ended with Garcia v. San Antonio Metro Transit Authority. The courts upheld a fair labor statute arguing that it did not violate the 10th Amendment because legal limits were not necessary with political limits in force. State sovereignty interests should be protected by the participation in the political process, rather than by judicially-enforced principles of federalism. Justice O’Connor dissented in Garcia. She argued that there needed to be legal limitations on Congressional power. While Garcia has never been explicitly overruled subsequent cases have indeed found judicially-enforceable limits on the power of the federal government to regulate states and their political subdivisions directly. In South Carolina v. Baker, the court held that federalism limitations are structural, not substantive. The states must find their protection from congressional regulation through the national political process.

In New York v. United States, Justice O’Connor wrote for the majority and affirmed that the 10th Amendment is a truism. She further stated that Congress did not violate the 10th Amendment by pre-empting state legislation with federal regulation on low-level radioactive waste. O’Connor asserts that the commandeering doctrine is unconstitutional because it harms democratic accountability and that the 10th Amendment has little bearing on Congress as the Commerce Clause confers power to Congress to regulate radioactive waste. In Justice Byron White’s dissent, he disagrees with O’Connor’s holding that the Federal government has limited authority to regulate States.

In modern cases following Garcia and South Carolina, there have been expansions by the courts on the scope of the 10th Amendment. In Printz v. United States, the court struck down provisions of the Brady Act which required state officials to implement the registry component of the federal program until the federal government had the capability to implement the registry. There is no clear doctrine with the 10th Amendment, Sebellius, New York, and League of Cities all deal with the Amendment differently. However, O’Connor’s finding in New York that “[w]hether one views the take title provision as lying outside Congress’ enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.” This has become a cornerstone of the rhetoric surrounding unfunded mandates. The 10th amendment plays an active role in party politics today.


In 1954, legal scholar Herbert Wechsler published The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government. (Wechsler). Wechsler stated that judicial intervention was unnecessary to protect state interests because the Framers gave the states a role in the selection of the National Government – both the Executive and Legislative Branches. (Wechsler); see also (Garcia v. SAMTA). Accordingly, when state interests remain unmet, it is up to the states through the election process to select the members of Congress that will adhere or protect those interests.

Even though UMRA was enacted three years after New York, it was more a political reaction to President Reagan than codifying a controversial Supreme Court ruling. The Republican Party struggled when President Reagan was in the White House, as there was still a Democratic majority in Congress. Inspired, Congressman Newt Gingrich wrote the Contract with America “to draw the attention of the public to the House of Representatives in the 1994 election” using clear language and outlining a specific, 10-point agenda in contrast to the Democratic majority (Heritage Foundation). The contract was a 100-day legislative agenda that can be split into three categories. First, the popular promises, such as ending Congress’s exemption from the laws, mandates, and regulations it imposed on the rest of the country. Second, the symbolic promises, such as balancing the budget as would a small business and a focus on decentralization. Third, the unattainable promises, such as setting term limits for Congresspersons. The Republican party, armed with this agenda, combined with disappointment with President Bill Clinton, and the reality of an eroding middle class, energized a new generation of conservatives and won a sweeping down ballot victory (Heritage Foundation). Consequently, under the Contract with America, the Republican Party regained control of Congress and in the process confirmed Wechsler’s thesis.

NewtGingrichThe Republican party delivered upon some of its promises: ending many Congressional legal exemptions, cutting committees and staffs, completing an independent audit of the House, passed the line item veto (which was held unconstitutional), reducing welfare subsidies and environmental regulation, and passing UMRA. The Balanced Budget Amendment did not pass, it was never going to, but it still remains an important philosophical issue in modern American politics to the dismay of many economists. With Gingrich’s “closer is better” slogan, unfunded mandates became one of the many examples of the way large federal governments are costing local governments too much money and stifling the expansion of local businesses (Heritage Foundation). Many local officials feared however that by forcing the federal government to have a balanced budget, Congressman would simply shift the costs to the states through unfunded mandates (The Atlantic). As a result, Congress passed the Unfunded Mandates Reform Act of 1995 (UMRA). Some of statute’s purposes were “to strengthen the partnership between the Federal Government and State, local and tribal governments” and “to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate Federal funding, in a manner that may displace other essential State, local, and tribal priorities.” The statute functions by setting a $50 million threshold amount where Congress may raise a point of order against consideration of legislation.

Prior to enactment of the UMRA, Congress could pass various laws imposed on the states at no cost to the federal government. These laws, however, were extremely detrimental to states and local communities because of the high costs. Advocates began to argue that the federal government had considerably changed how they interacted with states and localities. Primarily, that the federal government had moved to “new, more intrusive” and more compulsory” programs to regulate states instead of subsidizing, as they had done previously. (Regulatory Federalism: Policy, Process, Impact and Reform). In order to put a stop to the federal government imposing obligations onto the states, state and local governments contented that a federal statute was necessary to eliminate (or at least control) the imposition of unfunded federal mandates. Thus, one primary goal of UMRA was to ensure that the federal government would pay the state governments the costs of complying with certain federal statutes and regulations.

When the UMRA bill was considered on the Senate floor, supporters argued for its adoption based on equality to state and local governments and the obligation to principles of federalism. Senator Kempthorne emphasized the strains on city resources that unfunded mandates impose, stating, “[u]nder this legislation, we are acknowledging for the first time, in a meaningful way, that there must be limits on the Federal Government’s propensity to impose costly mandates on other levels of government.” (Unfunded Mandate Reform Act: History, Impact, and Issues). Further, Kempthorne recognized why unfunded mandates have turned into an “intolerable burden” on states. He discussed the federal government’s budget crisis noting that the large federal deficit, which has created no other option but to impose unfunded mandates on states in order to handle national issues. In sum, Kempthorne called for balanced legislation to “help bring our system of federalism back into balance, by serving as a check against the easy imposition of unfunded mandates.” (Unfunded Mandate Reform Act: History, Impact, and Issues). After the bill was adopted by both the Senate and the House and was approved by President Clinton, the UMRA was put into effect on March 22, 1995.

The enactment of the UMRA suggested that federal constitutional limitations were unnecessary because the legislature addressed unfunded mandates by passing 2 U.S.C. § 1501. Following the passage of the UMRA, 2 U.S.C. § 1501, the Supreme Court has dealt with two cases in particular that address Congress’s power to impose regulations on the states. In Printz v. New York, Justice Stevens pointed out that UMRA has already identified and addressed the problem of federal action having the effect of imposing “so-called unfunded mandates on the States.” Stevens explained that UMRA was designed “to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State governments without adequate Federal funding, in a manner that may displace other essential State governmental priorities.” Ultimately, Stevens believes the passing of UMRA shows that the political process will protect federalism and judges do not need to get involved.

In United States v. Morrison, Justice Breyer reiterated that it is the responsibility of Congress, not the courts, to strike the appropriate state and federal balance. He noted that during legislation, Congressional members consider the views of state and local officials and have already “developed formal procedures to ensure that such consideration takes place” (e.g. Unfunded Mandates Reform Act of 1995). Furthermore, Breyer emphasized that Congress has a greater ability to reflect state concerns in statutory schemes because the Judiciary cannot easily obtain the relevant facts and in turn, must apply broader legal rules. However, without a Republican majority in the early 1990s, UMRA might never have been passed.


By definition, a federal law is not an unfunded mandate simply because a state wants Washington to pay for it. This truth is not recognized those who wrongfully characterize certain federally funded laws and programs as unfunded mandates. For example, if you examine “unfunded mandates” on Wikipedia, a list of examples is given including: The Clean Air Act, Medicaid, and the recently repealed No Child Left Behind Act. However, none of these examples are truly unfunded mandates because (1) participation is optional, and (2) if accepted, the state and local governments receive a significant amount of federal dollars for their implementation.

Unfunded mandates have made their way into the realm of employment through the Americans with Disabilities Act of 1990. This act, much like regulations of the past regarding employment of minorities, places a mandate upon employers to create equal opportunities for persons with disabilities so that they will not be discriminated against in the hiring process. At first glance this seems like an open and shut case, obviously discrimination against individuals for their disabilities when hiring should be negated whenever possible. However, this act requires that state employers use their own funds to ensure that the workplace as well as the work itself is able to be completed by the individual regardless of their disability. Availability of access ramps, Braille, and other accommodations cost the employer money. Expenditures like these are often a leading reason for state employers resistance against these unfunded mandates.

It appears that unfunded mandates are becoming a thing of the past. In their most recentreport on unfunded mandates, the Congressional Budget Office concluded that in 2014, only 9% of the proposed bills included federal mandates (47 out of 539 bills). This number is down from the 2010–2013 period when the average was 13%. Furthermore, only four of the proposed bills in 2014 contained mandates that impose costs on state or local governments above the UMRA threshold of $76 million ($50 million in 1996 adjusted for inflation). Of those four bills that qualify as unfunded mandates, none of them were passed. Since 1996, only thirteen bills containing unfunded mandates have become law. Even more illustrative of this trend is the fact that Congress has not passed an unfunded mandate in six years.

The most recent unfunded mandate passed by Congress was the Healthy, Hunger-Free Kids Act of 2010. The act provides a number of mandatory programs imposed on state funded public school cafeterias. Lunch pricing and nutritional standards are regulated by the federal act at the expense of the individual states. (See a summary of the provisions and funding details, especially in Sections 205 and 208here). Not surprisingly, the Act was overwhelmingly supported by Democrats and opposed by Republicans. In the House of Representatives, 247 Democrats voted in favor and only 4 against, while 17 Republicans voted for the bill and 153 against. This partisan split is indicative of the greater debate of the role of unfunded mandates.

Bill_Signing_Healthy,_Hunger-Free_Kids_Act_of_2010Another notable opponent of the most recent unfunded mandate was the National Governors Association. The governors attacked Congress for imposing new involuntary programs on their schools while forcing the states to foot the bill. While the legislative and executive branches saw the Act as a way to protect the children from hunger and obesity, the states framed the mandate as a new burden on the middle class. This opposition encapsulated in an open letter to Congress represents the on-going discourse between the states and Congress regarding unfunded mandates in recent years. Since 2010, proposed unfunded mandates continue to be met with similar hostility from the states. Although the Healthy, Hunger-Free Kids Act became law, the lack of any new unfunded mandates over the past six years indicates that the states have the upper hand in the battle. The absence of unfunded mandates in 2014 is reflective of a distinct trend over the past two decades.

For many the result of New York v. United States was “good federalism but bad public policy” (Dreilinger). In the twenty years after ruling that the federal government could not commandeer states to dispose of radioactive waste, “the production of low-level waste increased by 200% . . . [and] disposal capabilities remain static” (Drelinger). There are only three low-level radioactive waste disposal sites in the United States and only one of those is not bound by local state compacts (Drelinger). The incentive programs from the Act in 1992 have not effectively encouraged new sites to be built, while supply of waste continues to increase. With the severance of the take-title provision, “if a state fails to develop a disposal mechanism, there is no penalty” (Drelinger). State officials have no incentive to fight with residents on where to deposit the radioactive materials, so the status quo is to store the waste in unofficial storage facilities. To deal with this unregulated amount of radioactive waste, either the control needs to return to the federal government or a cooperative arrangement needs to be reached within the confines of New York and UMRA. Justice O’Connor recognized that the federal government had the power to regulate radioactive waste under the Commerce Clause but was wary of this because of political accountability as neither state nor federal officials want to take the blame for the placement of radioactive waste (New York v. United States). The solution lies in a better incentive programs or placing conditions on federal funds. But this lack of dealing with low-level radioactive waste raises the issue that possibly this lack of unfunded mandates can have adverse effects. Unfunded mandates are on the decline because of political pressure to limit spending. However, the federal government might be limiting themselves too much and not be able to successfully enforce federal legislation.


The unfunded mandate is the manifestation of Congress complying with the rules set forth in New York by implementing the regulations under the Spending Clause. Accordingly, unfunded mandates seem to conform to the anti-commandeering doctrine. Mandates must also conform to the anti-coercion doctrine as well. For many people, this practice may seem underhanded; but this view stems from a misunderstanding of checks and balances. The legislature has been given a duty to prescribe laws for the good of the nation, the Court pronounced the original implication of some regulations were outside of the federal government’s power. Despite this, the federal government has the obligation to regulate what it deems to be good for the nation. Using an unfunded mandate, the government invented a system in compliance with the Constitution to achieve the necessary regulation; as they should and thus meeting the constitutionally requirements.

There has been a decline in the number of unfunded mandates passed by congress. Unfunded mandates should be controlled with political limitations rather than judicial limitations. Perhaps this continuing back and forth demonstrates that the holding in Garcia v. San Antonio Metropolitan Transit Authority is correct to the point of a premonition. The judicial protection proved to be unnecessary; the constitutional system provided the answer in the Unfunded Mandates Reform Act. The political process is more capable of handling the control over unfunded mandates because if Congress does act not in accordance to their constituents, they can be voted out of office. The Founders envisioned the State and Federal relationship would be determined by the people, not the courts. The Federalist Papers fleshed out the reasons for the structure of the state and federal relationship in the Constitution. Judicial intervention is not necessary to control unfunded mandates. It has been shown with the decline of unfunded mandates that the political limitations have been successful with controlling unfunded mandates.

Unfunded Mandates: An Unconstitutional Burden?