ENDNOTES 1. 514 U.S. 549 (1995). 2. “[The relevant legislation] contains no jurisdictional element which would ensure, through case-by-case inquiry, that the [crime] in question affects interstate commerce." Id at 549. 3. Alden v. Maine, 1999 WL 412617 (U.S.); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 1999 WL 412639 (U.S.); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 1999 WL 412723 (U.S.). 4. See Michael Horowitz, Impact of Federal Actions on States and Localities (Congressional Testimony given 7/28/98; www.house.gov/reform/neg/hearings/testimony/horowitz.pdf). 5. THE FEDERALIST PAPERS at 322 (C. Rossiter, ed. 1961) [hereinafter THE FEDERALIST PAPERS]. 6. Id at 246. 7. Id at 323. 8. 14 U.S. 304 (1816). 9. 22 U.S. 1 (1824). 10. 17 U.S. 316 (1819). 11. THE FEDERALIST PAPERS at 197-201. 12. 312 U.S. 52 (1941). 13. 430 U.S. 519 (1977). 14. 350 U.S. 497 (1956). 15. See, e.g., Landgraf v. USI Film Products, 511 U.S. 244 (1994). 16. "In the final analysis, there can be no one crystal clear distinctly marked formula," Hines v. Davidowitz, 312 U.S. 52, 67 (1941). 17. THE FEDERALIST PAPERS AT 198-99. The quote continues: These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “exclusive legislation" over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress "to lay and collect taxes, duties, imposts, and excises”; and the second clause of the tenth section of the same article declares that "no State shall without the consent of Congress lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification it now only extends to the duties on imports. This answers to the second case. The third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. THE FEDERALIST PAPERS at 198-99. 18. Id at 201-05. See also Federalist 23 at 152-57 and Federalist 31 at 193-97. 19. See David M. Sprick, Ex Abundanti Cautela (Out of an Abundance of Caution): A Historical Analysis of the Tenth Amendment and the Continuing Dilemma over 'Federal' Power, 27 Cap. U. L. Rev. 529, 534 (1999). 20. Supra, note 8. 21. THE FEDERALIST PAPERS at 198-99. 22. 1 Cranch (5 U.S.) 137 (1803). 23. Supra, note 8. 24. THE FEDERALIST PAPERS at 300-25. 25. Id at 320. 26. 426 U.S. 833 (1976). 27. 469 U.S. 528 (1985). 28. 505 U.S. 144 (1992). 29. 521 U.S. 98 (1997). 30. 469 U.S. 528 at 554 (1985). 31. THE FEDERALIST PAPERS at 240-46. 32. H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83 MINN. L. REV. 849, 897 (1999). 33. Fidelity Savings and Loan Assoc. v. de La Cuesta, 458 U.S. 141 (1982). 34. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). 35. See, however, American Trucking Associations, Inc. v. United States Environmental Protection Agency, 1999 WL 300618 (D.C. Cir.) (1999), a rare case finding that construction of the Clean Air Act on which the Environmental Protection Agency had relied was an unconstitutional delegation of legislative power. 36. 462 U.S. 919 (1983). 37. Supra, note 8. 38. THE FEDERALIST PAPERS at 197-201. 39. Cf. John S. Baker, Jr., Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper? 16 RUTGERS L. J. 495 (1985). Testimony of Shelley H. Metzenbaum, Ph.D. Regarding S. 1214, "The Federalism Accountability Act of 1999" July 23, 1999 Thank you for this opportunity to submit a statement for your consideration regarding S.1214, "The Federalism Accountability Act of 1999." I offer you my views primarily as a practitioner who has worked at the state and local levels of government, as well as in the federal government, not as an expert in pre-emption theory or law. I am currently a non-residential Visiting Professor at the University of Maryland School of Public Affairs. At Maryland, I started and run a program, the Compliance Consortium, that brings together a dozen state environmental agencies to learn from each other and cooperatively develop smarter ways to measure and manage their environmental compliance and enforcement programs. I am also Director of the Performance Management Project at the Kennedy School of Government at Harvard University, a program that brings federal, state, local, and private sector leaders together to make performance measurement and management more useful and effective. During the first term of the Clinton Administration, I served as the Associate Administrator of EPA for Regional Operations and State and Local Relations, where I worked extensively with state and local officials. I have also served as Undersecretary of Environmental Affairs and Director of Capital Budgeting for the Commonwealth of Massachusetts, Director of the Washington office for the City of Boston, and the economic development specialist in the Washington office of the State of Arkansas. My apologies for the lengthiness of my introduction, but my experience in government has made me very aware of the distance that often lies between the intent of a law and its actual effect. As a practitioner, I have strong concerns about both the philosophical and the implementation implications of S.1214. While I share some of your concerns about the problems this bill is intended to address, I have strong doubts that S.1214, particularly the aspects of it that mandate specific actions by federal agencies, will fix them. Indeed, I fear that S.1214 risks having the opposite effect than that intended. It is more likely to consume scarce federal agency resources that could be used for improved communication with and assistance to state and local governments by diverting them to what is likely to be a relatively meaningless exercise. I would like to suggest that there are better ways for Congress to motivate federal agencies to work more closely with state and local governments and to consider the federalism effects of proposed rules prior to promulgation. I respect your efforts and intentions with regard to S.1214. The American experiment with federalism was unique at its inception and has proven its value throughout the last two centuries. Its basic structure should be protected and cherished. I am constantly awestruck by the brilliant way the framers of the Constitution created the federalist structure as a sustaining check on the abuse of power by government. To quote James Madison in Federalist Paper No.51, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. From the beginning of U.S. history, debate has raged about the appropriate roles of the national and the state governments. Madison's writings strongly suggest that this dividing line was left intentionally vague. To have drawn it cleanly and permanently would have weakened the ability of one level of government to check the power of the other when the need arose. Through legislative and political debate, the United States has continued to define and refine how federalism can best work in a changing world. I recognize that S.1214 does not preclude that debate. Indeed, as it pertains to Congress, it appears to mandate Congressional discussion of this issue. My concem is that by mandating federal agencies to conduct a federalism assessment, you are asking them to interpret and second-guess the delineation of authority among national, state, and local governments already decided by Congress in individual laws. When you instruct federal agencies to analyze how much a rule "regulates in an area of traditional state authority" and "the extent to which State or local authority will be maintained if the rule takes effect," you are telling the agency to re-consider an issue Congress has already decided. Agencies should be expected to do their best to interpret Congressional intent, not re-consider policy issues. Related to this, it is unclear how you expect federal agency officials to make a judgment about issues such as "traditional State authority." What does that mean? Does it harken back to pre-Civil War tradition or only to traditions begun after that time? States have not always provided public education. Should the U.S. Department of Education therefore conclude that the provision of education is not an area of traditional state authority? Legal scholars, judges, politicians, and political scientists have long disagreed about what areas constitute "traditional State authority." How and why do we want to require federal agency officials to engage in this debate after Congress has already adopted laws defining the scope of federal agency responsibility? I have another concern. That is, if this bill becomes law and agencies conduct and publish federalism assessments fully in accordance with the law, the law is unlikely to motivate greater communication or improved relationships among federal, state, and local officials. I doubt, also, that it will enhance the quality of public services all three levels of government, separately and collectively, deliver to the American people. S.1214 will assure that some level of analysis and reporting gets done, but will be unable to assure that it occurs at anything more than a perfunctory level. If Congress wishes to fix problems that arise because federal agencies have not sufficiently considered the roles and concerns of states and localities, there are far more effective ways to do that than through command-and-control mandates on the agencies. Allow me to suggest a few alternative mechanisms likely to be more effective in promoting the objective of getting federal agencies to pay more attention to state and local issues, and helping state and local governments understand and, if necessary, react in a timely manner to federal deliberations and decisions. Fund the preparation and distribution of a weekly or monthly publication about federal actions affecting state and local governments that is distributed free of charge to every state and local government. When federal agencies announce a notice of proposed rule-making or propose or promulgate rules that affect state or local government, they generally assume that the states and localities will learn about the proposed or new rules through their trade press or the Federal Register. Few states and localities can afford the time to wade through the massive daily Federal Register, just in case there is a federal action that might affect them. Why not create a weekly or monthly bulletin/report from the federal government that gets mailed to every state and local government containing information about all the actions of the federal government relevant to them? This publication could include: notices of proposed rule-makings, proposed rules, final rules, the calendar for federal rulemaking as it affects states and locals, grant announcements, and technical assistance availability. Distribution of this publication would greatly reduce the information gathering costs for states and localities. If Congress really cares about communication with states and localities, it should provide additional funding for this new publication including funding to involve state and local officials in determining the content, organization, and look-and-feel of the publication. Support the StateLocal Gateway to Federal Internet-based Information. For the last several years, some wonderfully committed public servants from many of the federal agencies have been coming together under the auspices of the National Partnership for Reinventing Government to build and maintain a gateway that organizes on-line federal information likely to interest state and local governments (www.statelocal.gov). These |