Unfunded Mandates and Agenda Control

The federal government constantly creates unfunded mandates for the States to enact and enforce, which drains their budgets for logical and local investment. One of these mandates is the “Deadbeat Parents Act” (DPA). Some of the requirements of the States in this mandate are to facilitate genetic testing, to establish a Case Registry, to adopt a Uniform Interstate Family Act, and to enforce the collection of money from deadbeat dads. Congress found that dads are particularly delinquent when they cross State lines. What constitutional challenges or alternative approaches could occur in the future to challenge DPA? How might today’s Court and the Court pre-1937 respond?

Possible constitutional challenges could occur via the Ninth or Tenth Amendment. The Ninth Amendment could be used in referendums by the people of the States to expunge a federal law—such as the DPA. For example, the people of Michigan could vote in a State held referendum to abolish the federal law that restricts and restrains their budget, since the federal mandate is unfunded and thus contributes to bankrupting [injury] the State of Michigan, and more importantly, “the people” (Amendment IX, A-10). The Tenth Amendment could be used if the State governments united in a written declaration to annul a federally unfunded mandate. To be sure, both methods would hinge on the fact that the mandates are unfunded and therefore harms the people.

The 2012 Supreme Court would invariably have a difficult time ruling in favor of the peoples’ referendum, or a written consensus of the States. As Brutus elucidated in the former question, the Court has continually increased the authority of the federal government to the point of [almost] absolute superiority. Federalism and republicanism for the bankrupt States, such as California and Michigan, is still on the back burner.  However, if California or Michigan (or any state) formally declares bankruptcy, then the Court should be much more willing to address legal [remedy] redress for the injury caused by the federal government’s unfunded mandates.

Constitutional approaches by the pre-1937 Court might have noticed the power pendulum swinging towards federal superiority and adhered to the wet ink on the Ashwander rules. This pre-1937 Court might have noticed the precise facts of the case brought by the people, since about half of the States had initiated referendums for the people during the Progressive Era. The personal right of the people to not be bankrupt by the federal government [injury] might have demonstrated [causation] to engage the lawsuit [in seeking a remedy]. Thus, the pre-1937 Court might have upheld the peoples’ or States’ rights to overturn an unfunded mandate. Additionally, cases decided before FDR threatened to pack the Court reflect this analysis.

Again, standing is possible because the mandate is not funded 100% and thus harms the people of the state, side-stepping the “political question” involved because the people, or the States, are more representative of democracy than the federal government and are guaranteed protection in the Ninth and Tenth Amendments of the U.S. Constitution. Of course, the choice of the Court to shut down a federal law that obstructs the peoples’ passed referendum or formal agreement between the States is the opportunity to regain private and State authority/liberty.

In the end, judicial review and self-restraint continue to change the course of U.S. history, because the Court’s decisions greatly impact our future panorama. Of course, and most paramount, are the few cases it does decide to hear. When will unfunded mandates gain popular attention—for the Court to address?  Wouldn’t fully funding mandates allow for the State’s to be much more independent? Like, if the Federal Government fully funded the Deadbeat Parents Act, then would not the States have much more money to address other public concerns–like avoiding bankruptcy?

Sincerely curious.


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