Re-Entering the Arena: Restoring a Judicial Role for Enforcing Limits on Federal Mandates

Abstract

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 (UMRA) as part of the Contract with America, was designed in part to revive some foundational constitutional principles, including federalism, enumerated powers, and the non-delegation of lawmaking authority. 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 conducts a similar analysis with respect to the Act's implementation in Congress itself.

Keywords: Unfunded Mandates, Federalism, Separation of Powers, Constitution

JEL Classification: D72, D73, D78, H70, H77, I18, I28, N42