Coercive Federalism
Coercive federalism is a period of American federalism that began in the late 1960s. It is characterized by substantial growth in the power of the federal government relative to the states and by the ability of the federal government to override state powers and impose policies on the states. Coercive federalism has ten significant characteristics. One has been an unprecedented increase of policy conditions attached to grants-in-aid, conditions that enable the federal government to achieve national objectives that lie beyond Congress’s constitutionally enumerated powers and also to extract more spending on federal objectives from state and local governments. An example is the 21-year-old drinking age condition attached to federal highway aid in 1984. The No Child Left Behind Act (NCLB) of 2002 is another example, which became a cause célèbre for the states because of its costly testing and performance requirements.
Second, there has been a sharp rise in congressional earmarking of specific projects in grants-in-aid, thus denying discretion to state and local officials. The number of earmarks increased from under 2,000 in 1998 to 9,362 by 2003. Third, federal aid has shifted substantially from places to persons; that is, almost two-thirds of federal aid is now dedicated for payments to individuals (i.e., social welfare). For example, Medicaid alone now accounts for almost 45 percent of all federal aid. As a result, placeoriented aid for such functions as infrastructure, economic development, and education has declined steeply, and increased aid for social welfare has locked state budgets into programs subject to rising federal regulation and matching state costs.
Mandates are a fourth characteristic of coercive federalism. Congress enacted one major mandate in 1931, one in 1940, none during 1941–63, nine during 1964–69, twenty-five during the 1970s, and twenty-seven in the 1980s. The Unfunded Mandates Reform Act of 1995 cut new mandate enactments sharply, but did not eliminate standing mandates. Fifth, federal preemptions of state powers have risen to historically unprecedented levels. Of 439 explicit preemptions passed by Congress from 1789 to 1991, 233 (or 53 percent) were enacted only from 1969 to 1991. No post-1991 count is available, but most observers agree that Congress continues to enact large numbers of preemptions. In turn, preemptions are frequently upheld by the U.S. Supreme Court. A sixth feature of coercive federalism has been federal constraints on state taxation and borrowing, beginning especially with the enactment of limits on tax-exempt private activity bonds in 1984. Federal judicial and statutory prohibitions of state taxation of Internet services and sales are among the most prominent, current constraints. In November 2004, Congress extended its Internet tax ban (i.e., the Internet Tax Nondiscrimination Act) to November 2007.
A seventh characteristic has been the federalization of state criminal law. There are now some 3,500 federal criminal offenses, nearly half of which have been enacted since the mid-1960s. The number of federal prisoners increased from about 20,000 in 1981 to nearly 175,000 in 2004, and the number of federal prosecutors jumped from 1,500 in 1981 to more than 7,000. Generally, federal criminal laws (e.g., drug laws) are tougher than comparable state laws and make prosecutions and convictions easier than under state laws.
Coercive federalism has been marked, as well, by the demise of executive and congressional intergovernmental institutions established during the era of cooperative federalism to enhance cooperation. Most notable was the death of the U.S. Advisory Commission on Intergovernmental Relations (ACIR) in 1996 after thirty-seven years of operation. Ninth, there has been a decline in federal-state cooperation in major grant programs such as Medicaid and surface transportation, with Congress earmarking and altering programs more in response to national and regional interest groups than to elected state and local officials.
Tenth, coercive federalism has been marked by unprecedented numbers of federal court orders and large numbers of lawsuits filed against state and local governments in federal courts. Although federal court orders dictating major and costly changes in such institutions as schools, prisons, and mental health facilities have declined since the early 1990s, state and local governments are subject to high levels of litigation in federal courts, with various interests often trying to block major state policy initiatives through litigation. The U.S. Supreme Court resurrected the Eleventh Amendment in the 1990s to restrain some types of such litigation, but the Court’s decisions have been quite limited.
| BIBLIOGRAPHY:
John Kincaid, “From Cooperation to Coercion in American Federalism: Housing, Fragmentation, and Preemption, 1780–1992,” Journal of Law and Politics 9 (Winter 1993): 333–433; and John Kincaid, “From Cooperative to Coercive Federalism,” Annals of the American Academy of Political and Social Science 509 (May 1990): 139–52. |
John Kincaid
SEE ALSO: Cooperative Federalism; Economic Development; Education; Enumerated Powers of the U.S. Constitution; Federal Courts; Housing; Intergovernmental Relations; Medicaid; No Child Left Behind Act; Preemption; Transportation Policy; Unfunded Mandates; Welfare Policy