Pleading the Tenth: The Mandate Hoax of 1995

IN recent decades the United States Congress has developed the taste and the means for evading the constitutional inhibitions on the growth of government. The most insidious mechanisms so far adopted have included tax-shifting devices that enable Congress to give things away without fully assuming the risks entailed in raising the taxes to pay for its beneficence. One such device is the unfunded mandate, which allows the Federal Government to force state legislators to raise the taxes needed to comply with a federal decree. Curbs on this abuse were the subject of the first seemingly major enactment under the Contract with America. Unfortunately, the new statute is a hoax.

The Unfunded Mandate Reform Act of 1995 (UMRA) is extremely complex, and that complexity has prevented most observers from recognizing its toothlessness. The essence of the legislation, however, is easy to describe. For a limited class of unfunded mandates packaged with other provisions in a single legislative bill, it permits opponents to demand a separate vote on the mandates while the bill is being considered on the floor of the House or Senate. The statute thus does not prohibit unfunded mandates generally or any particular subset of that class. It establishes a purely procedural device that is supposed to make it harder for such mandates to be enacted.

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Nelson Lund

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IN recent decades the United States Congress has developed the taste and the means for evading the constitutional inhibitions on the growth of government. The most insidious mechanisms so far adopted have included tax-shifting devices that enable Congress to give things away without fully assuming the risks entailed in raising the taxes to pay for its beneficence. One such device is the unfunded mandate, which allows the Federal Government to force state legislators to raise the taxes needed to comply with a federal decree. Curbs on this abuse were the subject of the first seemingly major enactment under the Contract with America. Unfortunately, the new statute is a hoax.

The Unfunded Mandate Reform Act of 1995 (UMRA) is extremely complex, and that complexity has prevented most observers from recognizing its toothlessness. The essence of the legislation, however, is easy to describe. For a limited class of unfunded mandates packaged with other provisions in a single legislative bill, it permits opponents to demand a separate vote on the mandates while the bill is being considered on the floor of the House or Senate. The statute thus does not prohibit unfunded mandates generally or any particular subset of that class. It establishes a purely procedural device that is supposed to make it harder for such mandates to be enacted.