Timothy J. Conlan

Janus-Faced Federalism: State Sovereignty and Federal Preemption in the Rehnquist Court

The Roman god Janus had two faces, looking in opposite directions. This split appearance is an apt metaphor for the Rehnquist Courts decisions involving federal-state relations. One face, which has received much attention over the past decade and a half, is characterized by the Courts post-1990 decisions concerning state sovereignty, sovereign immunity, and the reach of Congresss powers under the Interstate Commerce Clause and the 14 th Amendment. All have had a devolutionary thrust, bolstering state authority or insulating state institutions against federal law and regulations. The second, less recognized face is distinguished by the Courts emerging doctrines concerning federal preemption of state and local authority. In these cases, the Supreme Court—often led by members of the new federalist majority—has tilted surprisingly in favor of federal authority. This article examines both faces of contemporary judicial policy making on matters of federalism, with a particular focus on the implications for federal preemption.

The Changing Politics of American Federalism

This article synthesizes and interprets contemporary research on the changing relationships between American federalism and the U.S. political system. It does so by examining how three important political trends—nationalization, polarization, and delegitimation—have affected intergovernmental relations and intergovernmental policy across a range of venues: electoral politics, policymaking, and public administration. In each of these areas, traditional scholarly perspectives on the relationship between federalism and the political system are contrasted with the findings of contemporary research and analysis.

Beyond the financial crisis: the future of fiscal federalism in the United States

The Great Recession brought significant fiscal consequences for all levels of government in the United States. The federal deficit grew to record proportions as a share of gross domestic product (GDP) during peacetime, while states and localities experienced the deepest fiscal crises in the post-war era. State and local fiscal responses were predictably pro-cyclical, exacerbating subnational economic downturns through budget cuts and tax increases. The national government, on the other hand, responded by undertaking an economic stimulus program of over 5 percent of GDP, much of which was delivered through the state and local sector, which helped mitigate the worst effects of the downturn for several years. However, after several years of stimulus, the federal fiscal pump was reversed, as polarized conservative leaders captured the agenda by forcing the Obama Administration to cut the deficit through a ten-year spending reduction plan. The cyclical fiscal effects of the financial crisis were more than just temporary in nature, as they interacted with underlying structural fiscal deficits and longer-term pressures in many states and local governments. Large cities and counties, such as Detroit and San Bernadino, slipped into bankruptcy, as the recession proved to be the last act in a decades-long erosion of fiscal capacity and economic wealth. States were forced to be bankers of last resort, saddled with tackling their own fiscal imbalances as well as stepping in to rescue cities that went over the fiscal cliff. Notwithstanding significant improvements in the national economy and reductions in the deficit from 10 to 3 percent of GDP, the federal government was missing in action, hamstrung by gridlock and gripped by record polarization between the two parties. The shifting and volatile fiscal fortunes of the US intergovernmental system reflects the weak institutionalization of intergovernmental fiscal collaboration at the national level. A near-record federal stimulus that modeled the best thinking in public finance was quickly followed by federal indifference and passivity in the face of major fiscal pressures experienced by many subnational governments. The institutions of fiscal collaboration that had emerged during the era of cooperative federalism in the 1960s had largely disappeared by the 1990s. Fundamental political incentives that formerly provided incentives for bargaining and collaboration across levels of government collapsed in the wake of the nationalization and centralization of political parties and the centralization of media and interest groups. In its wake, federal intergovernmental policy-making became less systematic and more opportunistic – collaborative when, and only when, national officials perceived it to be in their interest to engage state and local capabilities. Going forward, all levels of government will be struggling with the fiscal implications of an ageing society and rising health-care costs. Whether it be rising Medicare costs at the federal level or employee pensions in state and local governments, all levels of government will be faced with paying for the elderly and their doctors from a slower growing economy featuring fewer workers. In the past several years alone, pension and health entitlements and revenue slippage are crowding out other priorities, such as education and infrastructure, at all levels of government. With common fiscal challenges, intergovernmental fiscal challenges are optimally addressed through fiscal collaboration. While some vertical fiscal equity is achieved through federal grants to states for health care, the United States has little tax sharing or fiscal equalization commonly found in other federal systems. The question facing the United States is whether and how it will step up to fashion truly intergovernmental fiscal solutions to long-term fiscal challenges that pervade public finances at all levels of government.

The Politics of Accountability: The American Recovery and Reinvestment Act of 2009 ARRA

Accountability has become an iconic concept in public management -- never more so than in the implementation of the 2009 American Recovery and Reinvestment Act (ARRA), or the Obama Administrations stimulus. With more than

Inflection Point? Federalism and the Obama Administration

800 billion and economic growth on the line, the Administration placed its fiscal and political fortunes on the line with this high stakes policy management initiative. A strong emphasis on accountability would help the Administration offer symbolic reassurance to a restive Congress and public, and evidence suggests that ex ante design and ex post audits were successful in warding off characteristic fraud and abuse that often plagues such urgent and highly visible national initiatives. However, such outcomes were achieved at the expense of high administrative costs and significant conflicts among newly emboldened networks of top political officials, program managers and audit officials, all acting under the glare of greater public transparency for spending and jobs. The complex structure of over 200 programs and the reliance on decentralized intergovernmental networks may have diffused blame for embarrassing implementation lapses, but this same structure deprived the President of valuable credit claiming opportunities for the largely successful economic outcomes flowing from one of the largest domestic spending initiatives in postwar history. Notwithstanding credible economic impact estimates by CBO, a confused and bewildered public refused to believe that the stimulus had a favorable impact on a struggling economy.