Re-entering the arena: restoring a judicial role for enforcing limits on federal mandates.

• Author: Eastman, John C.

1. INTRODUCTION

   Originalists sometimes find it difficult to square the Framers' Constitution with the minute details of statutes dealing with an administrative state that bears little or no relationship to the kind of government the Framers established. We can and should, nevertheless, keep in mind some guiding principles, and consider the effect of the Unfunded Mandates Reform Act of 1995 (1) ("the UMRA" or "the Act") on the enactment and implementation of modern administrative statutes.

   One principle: under our Constitution, the lawmaking power is assigned to Congress exclusively. Although much ignored, this non-delegation doctrine is an important foundational principle that may partly explain the different levels of effectiveness that have been achieved by Title I of the Act, which is applicable to Congress, and Title II, which is applicable to executive agencies.

   Further, there is the principle of enumerated powers. Overlooked for the better part of the last century, this principle has undergone a renaissance of sorts since the Supreme Court's decision in United States v. Lopez, (2) which was rendered shortly after Congress enacted the UMRA. Any assessment of the UMRA should, therefore, be done in light of renewed dedication to this core founding principle.

   Finally, there is the federal system itself. Although much of the debate over the UMRA has centered on the need to protect state and local governments from an overreaching federal government, little attention has been paid to one of the Founders' key purposes for keeping States as separate sovereign entities in the constitutional system. The federal structure envisioned by the Framers, and in particular the maintenance of state governments as separate sovereign entities and not just federal administrative units, was designed to protect private liberty, not simply to protect the States qua States. The federal structure accomplished this, in part, by insuring accountability in government, as Justice Scalia noted in his opinion for the Court in Printz v. United States. (3)

   The mini-revolution in 1994 that gave Republicans control of Congress for the first time in forty years, and which led to the enactment of the Unfunded Mandate Reform Act of 1995 as part of the Contract with America, implicitly had these principles in mind. This Article considers how successful the UMRA has been in furthering these principles and how shortcomings of the UMRA that have become evident over the past seven years might be corrected to further these principles still further. Part II of the Article elaborates on the general federalism principles that are at issue. Part III briefly summarizes the key provisions of the UMRA and discusses recent testimony in Congress about the effectiveness of those provisions. Part IV addresses in greater detail how the Act has fared in the regulatory agencies and suggests some amendments that will increase its effectiveness. Finally, in Part V, the Article will conduct a similar analysis with respect to the Act's implementation in Congress itself.

2. SOME GENERAL PRINCIPLES ABOUT FEDERALISM

   When the Framers of our Constitution met in Philadelphia in 1787, it was widely acknowledged that a stronger national government than existed under the Articles of Confederation was necessary if the new government of the United States was going to survive. The Continental Congress could not honor its commitments under the Treaty of Paris; it could not meet its financial obligations; it could not counteract the crippling trade barriers that were being enacted by the several States against each other; and it could not even insure that its citizens, especially those living on the western frontier, were secure in their lives and property. (4) But the Framers were equally aware that the deficiencies of the Articles of Confederation existed by design, due to a genuine and almost universal fear of a strong, centralized government. As the Supreme Court noted in Bartkus v. People of State of Illinois, "the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power" (5) Our forebears had not successfully prosecuted the war against the King's tyranny merely to erect in its place another form of tyranny.

   The central problem faced by the Convention delegates, therefore, was to create a government strong enough to meet threats to the safety and happiness of the people and yet not so strong as to itself become a threat to the people's liberty. (6) The Framers drew on the best political theorists of human history to craft a government that was most conducive to this end. The idea of separation of powers, for example, evident in the very structure of the Constitution, was drawn from Montesquieu out of recognition that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny." (7)

   But the Framers added their own contribution to the science of politics, as well. In what can only be described as a radical break with past practice, the Founders rejected the idea that the government was sovereign and indivisible. Instead, the Founders contended that the people themselves were the ultimate sovereign (8) and could delegate all or part of their sovereign powers to a single government or to multiple governments as, in their view, was "most likely to effect their Safety and Happiness. (9) The importance of the division of sovereign powers was highlighted by James Wilson in the Pennsylvania ratifying convention:

   I consider the people of the United States as forming one great community, and I consider the people of the different States as forming communities again on a lesser scale. From this great division of the people into distinct communities it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number and magnitude of their objects. Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the States as made for the people as well as by them, and not the people as made for the States. The people, therefore, have a right, whilst enjoying the undeniable powers of society, to form either a general government, or state governments, in what manner they please; or to accommodate them to one another, and by this means preserve them all. This, I say, is the inherent and unalienable right of the people. (10) It remains one of the most fundamental tenets of our constitutional system of government that the sovereign people delegated to the national government only certain, enumerated powers, leaving the residuum of power to be exercised by the state governments or by the people themselves. (11)

   This division of sovereign powers between the two great levels of government was not simply a constitutional add-on by way of the Tenth Amendment. (12) Rather, it is inherent in the doctrine of enumerated powers embodied in the text of the main body of the Constitution itself--in Article I's provision that "All legislative Powers herein granted shall be vested in a Congress of the United States, " (13) for example, and in the specific, limited list of enumerated powers granted in Article I, Section 8. This view of the Constitution was so well accepted that even the great nationalist Chief Justice John Marshall conceded in McCulloch v. Maryland that the federal government was "acknowledged by all, to be one of enumerated powers" and that as a result it was "universally admitted" that the federal government could "exercise only the powers granted to it." (14) The Supreme Court forcefully reiterated this view in United States v. Lopez, referring to the doctrine of enumerated powers as a "first principle." (15)

   Perhaps most important for present purposes, though, was the purpose underlying the enumerated powers doctrine. Contrary to the belief of some avid states' rights advocates, the constitutionally-mandated division of the people's sovereign powers between federal and state governments was not designed to protect state governments as an end in itself, but rather "was adopted by the Framers to ensure protection of our fundamental liberties." (16) As the Supreme Court noted in Lopez: "`Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.'" (17) When Congress (or a federal agency, in supposed reliance on an act of Congress) acts beyond the scope of its enumerated powers, therefore, it does more than simply intrude upon the sovereign powers of the States; it acts without constitutional authority, that is, tyrannically, and places individual liberties at risk. (18)

   Foremost among the powers not delegated to the federal government was the power to regulate the health, safety, and morals of the people--the so-called police power. As James Madison noted in Federalist No. 45: "The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." (19) "No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation," noted the Supreme Court in Gibbons v. Ogden. (20) That view continued to prevail at the end of the nineteenth century. In United States v. E. C. Knight Co., for example, the Court stated: "It cannot be denied that the power of a State to protect the lives, health, and property of its citizens, and to preserve good order and the public...