The founding fathers of the United States of America wrote a Constitution that assured a balance of power. In fact, one could argue that this balance of power is one of the cornerstones of the Constitution. The Constitution has endured the test of time and serves our country extremely well. Federal preemption is challenging the delicate balance of power our founding fathers intended to safeguard. In order for any system to advance it must overcome challenges. To state that federal preemption is merely a challenge would be a gross understatement. All political systems are tested and must evolve. It is vital that our Country face the challenges posed by federal preemption head on to formulate agreements that will serve state, tribal, local and federal governments equally.
The report published by the National Academy of Public Administrators [NAPM], Beyond Preemption: Intergovernmental Partnerships to Enhance the New Economy (May, 2006) indicates that federal preemption is a multifaceted and complicated issue. According to Beyond Preemption: Intergovernmental Partnerships to Enhance the New Economy, “of the 520 statutory preemption enacted by Congress since 1790, nearly two-thirds came during the past 40 years” (p, ix). Federal preemptions have skyrocketed in the last half century. Part of the issue is growth. Growth is typically a positive force in the development of any entity. Initially there were three cabinet departments for the President to manage. There are now fifteen cabinet departments. Once one factors in state, local, and other government agencies the number of governmental agencies soars. Given this growth, it is easy to see how difficult it is to come to a consensus regardless of the topic up for debate. Coming to an agreement could in theory take months or possibly years. According to Beyond Preemption (2006)
the size of Congress and federal agencies tend to be large, complicated entities that are influenced by many different constituents. They often may be slower to act and more resistant to change because they have multiple layers or management, policy making and approvals (p. 23)
Intergovernmental relations are a key factor in reaching amicable agreements before more federal preemption become necessary.
The article suggests there are instances when a federal preemption is almost mandatory. For example, public safety, public health or a crisis would require swift uniform action from all representatives of government especially the Executive Office. Beyond Preemption (2006) also suggests that the nature of the issue determines whether is it is an issue that can be resolved on a local or state level versus introducing a federal and often permanent mandate. Issues related to the environment, health, national safety necessitate federal action. Other less pressing, but just as important issues such as the Uniform Sales Tax Act can progress at a more leisurely pace. In this example, our national safety is not at stake so there is time for discussion, debate and eventually agreement from various participating parties.
In the article Street Level Bureaucracy: The Critical Role of Street-Level Bureaucracy by Michael Lipsky (1980), he challenges public administrative managers to be innovative in solving the issues affecting their constituents. Managers are encouraged to do more with less. Beyond Preemption states that the states are the “laboratories” of government (p, 34). The nature of state and local governments contact with families and individuals fosters a relationship that produces innovative creative results. According to Beyond Preemption federal preemptions “undermines the federal system’s overall capacity to make programs work better, because it reduces the ability of state and local govenments and incentives for them--to experiment with new ways to implement programs” (p, 2). Beyond Preemption contends that federal mandates “are especially damaging to state and local innovation because of the arbitrary limits they create" (p, ). Federal and local government agencies will find it increasingly difficult to implement federal mandates while developing inventive solutions to the problems their constituents face on a routine basis.
The front line public employees have excessive contact with individuals in health, education and safety issues. According to Table 2 (page 17) health and safety has yielded the second highest number of federal preemptions. This category has yielded one hundred and thirteen federal mandates between 1790 and 1991 (page 17). The people that have the most contact with these various populations such as police officers, educators or social workers are likely not consulted as federal policies are written. The policies are written by “generalists” who may be lacking in the expertise to write an efficient policy on a specific issue. Issue networks are imperative in formulating thorough comprehensive policies.
The power of the purse is a considerable factor in the federal preemption process according to Beyond Preemption (page 2). According to the article Beyond Preemption, “until recently, the most common way to engage state and local governments in national initiatives was by imposing conditions on federal funding of intergovernmental grants, loans, loan guarantees and cooperative agreements” (page, 3). Many federal preemptions are unfunded mandates. This stresses local and state government bodies who struggle to make up the financial difference in implementing federal policies. States may elect to opt out of federal mandates by refusing federal funding. When states exercise this option it is counter productive and does nothing to nurture agreements that will satisfy all parties involved.
A “national dialogue” is recommended as a means to achieve a balance between necessary federal preemptions and policy making by other branches of government. The Panel contends that “the role of federal preemption in the past, present and future” needs to be debated. The panel recommends that an ‘Intergovernmental Partnership Act’ be established to monitor policies that are being enforced by the federal government.
A second recommendation suggested by Beyond Preemption is a ‘Federal Action Plan’ (page, 9). The National Academy of Public Administration Panel urges the heads of state to take a more active role in advocating for their rights. The panel states:
“the national associations of state and local officials are key to any effort to strengthen the role of their governments in the federal system. If they do not take on this task and stick together to form a strong and lasting coalition for this purpose, no one else will.” (p. 9).
Communication is the key to working through challenges in any system. The notion of an open exchange of ideas facilitated by a ‘intergovernmental partnership act’ and ‘federal action plan’ are instrumental in making progress on the issue of federal preemptions. Failing to address this important issue as our country moves forward will only result in a total breakdown of communication.
A third recommendation by the National Academy of Public Administration Panel is for Congress to utilize ‘Federal Assessments’ (page, 7). This article contends there is a major void in assessing the ramifications of federal mandates. This practice borders on irresponsibility on the part of federal policy makers and administrators. The panel stresses federal agencies evaluate all sides of an issue and consider all possible alternatives prior to implementing a federal preemption whenever possible (page, 7). This recommendation goes hand and hand with the Panel’s final recommendation. The final recommendation is establishing a “federalism research agenda”. The National Academy of Public Administration Panel found that:
“the Panel continually found that the information it needed to precisely define and illustrate the trends and cases it was reviewing was incomplete, outdated, episodic or absent. Although several scholars and reserch or academic organizations contrinue to pursue relevant work, there is currently no lead organization or clearinghouse for intergovernmental statistics and studies” (p. 9).
The age of computers and the internet should seemingly help various government agencies keep better records. Yet that does not appear to be the case. In fact, Beyond Preemption found that government is struggling to keep up with the technology available in this day and age.
The panel has an array of questions that should be considered before a federal preemption is enacted. These questions are relatively simple in nature. They promote an all-encompassing approach that evaluates all other possible options before enacting a federal preemption. It seems as if technology should allow for all interested parties to weigh in and submit their concerns. Seemingly this sounds like a good strategy, but then the growth issue factors in and efficiency would be sacrificed.
There is clearly no simple solution for this complicated issue of federal preemptions. Breaking away from England forced the founding fathers to be extremely sensitive to the balance of power. Federal preemptions have created a significant shift in power in favor of the federal government. According to Beyond Preemption, it has created a centralization of power that will be difficult to reverse if the trend is allowed to continue.
National Academy of Public Administration, (2006). Beyond Preemption: Intergovernmental Partnerships to Enhance the New Economy. Washington.
Lipsky, Michael, (1980). Street-Level Bureaucracy: Dilemmas of the Individual in Public Service. Russell Sage Foundation.