States vs. feds: the growing schism between states and the federal government makes for a difficult and deteriorating relationship, with a few exceptions.

• Author: Tubbesing, Carl
• Position: FEDERALISM: 07-08.2013

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The challenges facing state officials as they deal with the federal government are enough to make them nostalgic for the good old days of unfunded mandates and preemption. As pernicious as these phenomena were and still are--they were easily explained, and their effects on state flexibility and innovation were easily understood.

Cracks in the Federal System

The current tensions in the federal system are more nuanced and resistant to solution than they were only a decade or so ago. And the prospects for any long-term improvement in the states' relations with the federal government are downright discouraging. That's the gloomy assessment offered by all four federalism experts interviewed for this article.

The bright spot in their analyses is that states continue to be policy activists and innovators, sometimes even in defiance of federal law, demonstrating the resilience and vitality of the federal system, even in a time of great tension.

Five recent developments present significant challenges for state officials in achieving a healthy partnership with the national government.

1. Reauthorization of Federal Laws

   Historically, most federal laws have come with an expiration date. In order for them to remain in place, they must receive congressional reauthorization, or at least be amended or extended for the short term. The reauthorization process, however, has been one of the casualties of the near-paralysis that characterizes much of the activity in Washington, D.C., these days. In fact, some major laws have never been reauthorized and others haven't been for decades. The Clean Air Act was last amended in 1990, the Safe Drinking Water Act in 1996. The Temporary Assistance for Needy Families was reauthorized in 2005, but has existed on a series of short-term extensions ever since. Both the Workforce Investment Act of 1998 and the No Child Left Behind education act of 2001, have never been reauthorized. This failure to act places uncertainty on the laws' futures that not only inhibits states' abilities to plan ahead and implement the laws, but also to improve them.

   George Mason University's Paul Posner notes that when the reauthorization process works, states' experiences with implementing the law can provide important insight into how to improve it. But the current breakdown in the reauthorization process, says Michael Bird, former senior federal affairs counsel for NCSL, prevents state legislators from working with Congress to fix problems in the laws.

   John Kincaid from Lafayette College and Florida State's Carol Weissert point out a sobering reality: Even when Congress does reauthorize a law, it seldom listens to state officials. "Years ago," Weissert says, "there was much more deference to state legislators and governors." She points to a study by political scientist Kevin Esterling that showed during Medicaid hearings in the U.S. House, members of Congress were more likely to favor the testimony of industry, trade associations and think tanks over that of state officials.

2. Waiver Authority

   States may apply for waivers from certain provisions in many federal laws. One theory behind the concept is that it saves Congress from writing even more detail into legislation, and it allows the executive branch to accommodate differences among states. Waivers can also be used to encourage a specific state action. In fact, waivers have become a prominent focal point in state-federal relations. President George W. Bush and his Education Department, for example, used waivers to encourage states to comply with the No Child Left Behind law. Likewise, waivers have been an essential tool in negotiations between the Obama administration and state governors over the Affordable Care Act.

   Posner views the increased use of waivers as a presidential reaction to congressional inaction. By making accommodations and improvements to laws...