Garcia v. San Antonio

The federalist system, under judicial review, should be the probe of “national supremacy against nullification or usurpation of individual states.” Drawing a line in the sand, the Supreme Court can decide where the federal government reigns and where the state and local government rules. When the Supreme Court fails to operate on this front, there may be overlapping reigns that bring about inefficiency and confusion. However, "it's possible that through a tyranny of small decisions, we could make a nightmare society," says Harvard Law School Professor Laurence H. Tribe. One such decision might be the decision in Garcia v. The San Antonio Transit Authority: where the decision to extend rights provided by the Fair Labor Standards Act (minimum wage and overtime pay) to employees of state and local governments. Because of this decision, states are protected by the procedural safeguards of federalism rather than placing the states into a realm of their own. “The extent to which the structure of the Federal Government itself was relied on to insulate the interests of the States is evident in the views of the Framers,” begins the argument that the states themselves are protected through representation in the federal government rather than actual protections placed into the constitution.

Introduction

Powers not granted to the Federal government, nor those prohibited to it by the states, are granted exclusively to the states or the people by the Tenth Amendment. Where one would hope that the federal government was collaborating to achieve complementary goals, there has been an immediate shift from cooperative federalism (more decentralized) to coercive federalism (more centralized) removing the interlocking management techniques granted by the Tenth Amendment. Ostensibly, there are overlapping management realms and techniques that the federal-state system could use to the advantage of policy making coherence—the extent to which a policy reflects all branches of government and the will of the people. Instead, the overlapping management has been sidetracked by a more centralized model of governance: one that favors top-down rather than collaborative policy making.

Due these new strains plaguing the federalist system, the 21st century has seen several changes to the power and scope of operations affecting both the states and the federal government. This paper will explore intergovernmental models in the realms of assistance programs, disaster response, and general services. These realms will highlight the greater implications of power shifting from cooperative federalism to coercive federalism. Centralization has led to a new breed of federal-to-state coercion, forcing the regular intergovernmental models to no longer apply; since, 10th amendment protections have been threatened by the attempts to coerce the states, in their place are new public management dynamics. Intragovernmental cooperation has escalated to a winner-take-all power struggle often in favor of the federal government. The powers not delegated by the constitution are now falling into the reigns of the federal government, making the 10th amendment null and void.

Grand Experiment

The “Grand Experiment” allows for the states to be innovators in policy areas. One such area is health policy, where states have typically acted as “learning models” according to Weissert and Miller in Punishing the Pioneers. This learning model is often adopted by surrounding states. “Others study these states and improve upon their policies until eventually the federal government moves to standardize benefits across the states, dragging states slow to act or limited in their policy choices.” The implications of this adoption is threefold. First, innovative states may suffer if they could be held responsible for the costs of their policy experiments in perpetuity, even when the federal government follows their lead and takes over responsibility in a particular area. Second, states fiscal capacity for innovation may be compromised by the consequences of federal management of program responsibilities for which states are paying the bill but are no longer in a position to influence costs. Third, less congruence between public policy and public opinion may occur as serious moral choices traditionally devolved to states more homogenous preference venues will now be resolved nationally.

Chain of Command

During Hurricane Katrina multiple levels of government were involved in cooperative federalism attempting to create need-based services in local neighborhoods. Mayor Ray Nagin poorly communicated his needs to Mayor Kathleen Blanco, Blanco took formidable action to initiate local services but poorly communicated her needs to President Bush and the federal government. The failure of the federal government can be partially accounted for by the Federal Emergency Management agency, which was under the poor, inexperienced leadership of Michael Brown. In the years that followed, the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina found that “too often there were too many cooks in the kitchen and because of that response Katrina was at times overdone, at times underdone. Too often, because everybody was in charge, nobody was in charge (2006, xi).” An intergovernmental model entitled “marble cake federalism” was at play during the aftermath of Hurricane Katrina, which attempted to incorporate a sharing of functions and the prioritization of collaborative efforts. This form of cooperative federalism allowed for the sharing of information, need-based services, and resources that were available by the local, state, and national governments. However, the poor communication on multiple levels effected the ability to cooperatively coordinate an effective response. The luxury of an intergovernmental response begs the question if a top-down approach might be more favorable formed from a raison d'être of the meaning of government. Ostensibly, the aftermath of Katrina shows the need for more cooperative or more of a central decision-maker, because “there are no directions as to who should instigate a power move in the United States, it is done by chance, it is often done too late to be fully effective, and it frequently produces conflict among the several forces involved (Leach 1970, 61).”

The current administration tends to be in favor of an expanded role of the national government such as the formation of the Department of Homeland Security and the creation of National Response Plans, which would create a more centralized decision-maker. Expanding the role of the federal government might be a wise decision, as might be the decision to allow a layered approach centered on the local government and layered outwards. Nationally, decisions might be made without the priorities or knowledge of local decision making or the needs of local communities. While local decisions might not fully take advantage of state and national resources. In either case, a pre-formed plan from all three layers of government, might be useful in the event of an emergency. The executive findings found in The Federal Response to Hurricane Katrina: Lessons Learned suggested that “ultimately, when a catastrophic incident occurs, regardless of whether the catastrophe has been warned or is a surprise event, the Federal government should not rely on the traditional layered approach and instead should proactively provide, or ‘push’ its capabilities and assistance directly to those in need.” According to Mary and Robert Kweit the question is “whether such centralization is necessary or whether it is possible to respond effectively to disasters in an intergovernmental context (2006, 376).” Homeland security mandates suggested that the chain of command should be formed by the local government outward: the mayor, the Homeland Security department of New Orleans, the governor, the federal secretary of Homeland Security, the president. Interoperability between these different levels of power, suggests that all power should be centralized and formulated by the natural capacity and coordinated effort of the local level.

Preventive Paradigm

Government authority has diffused from the federal government to the state and local sub-units—creating less distinguishable lines of governmental authority during the conduct of public programs. Among the reinvention movement, the solutions that are shaping authority patterns become more “flexible [and] responsive,” creating more “effective organizations” of power. As the federal government gains more authority than the state and local governments, the necessity to coordinate actions to achieve complementary goals becomes greater and coordinated action is used to reduce “redundancies and minimize weak lines in any integrated system of security precautions.” Administrative actions are therefore top-down in approach, allowing for state and local governments to simply enact policy rather than be instrumental part in forming policy. Forming new governmental authority, a preventative paradigm has been created for “security precautions” that allows new public management imperatives which favor of the federal government for decision-making. Transitive policy domains are promulgated by the examples of Homeland Security in dealing preemptively for terrorist activities and FEMA’s intergovernmental failures after Hurricane Katrina.

Cohesion Among the Federal System

Cohesion is the key to better relationships between the states and the federal government. The Politics of Cohesive Federalism outlines the relationship dynamics that effect the increase in federal mandates that preempt state and local authority into four groups: state political cohesion, federal political cohesion, federal-state policy congruence, and alliances. One key example of a federal mandates is the Real ID Act, an act suggested by the State Motor Vehicles Administrators as a way to make contumacious states to adopt uniform procedures. A key element of the act would require re-enrollment of all current drivers licenses under a new verification process (showing original documentation such as birth certificates). Going into effect by May 2008, some states may be able to obtain additional time for implementation. Once implemented, residents lacking the id would be unable to board airplanes and would lack access to other services. Demonstrating cohesive federalism, the Real ID Act demonstrates the need for better relationship dynamics on all levels of the federal system. First, state political cohesion must become unified and be able to mobilize to protect their mutual interests. Texas Senator Leticia Van de Putte states quite clearly that “state legislators must be aggressive in their contacts with their federal counterparts and be creative in finding fresh approaches to federalism in this ever-changing environment.” Since, secondly the federal political cohesion will be more effective if federal officials are unified and mobilized to new national priorities, meaning there could be “enhanced authority for the federal government to direct subunit governmental action.” The Real ID Act is one instance where a security dimension has come into play, entering policy areas where the link to security was previously less obvious (such as state driver’s licenses). Thirdly, federal-state policy cohesion increases the combined forces of the federal and state governments creating more substantive goals toward a federal mandate. Opposition to the Real ID Act has come from state governments all across the board, leading to fundamental and structural pressures for federal officials to preempt state authority in the realm of driver’s licenses. Fourthly, state and federal governments may not enjoy the the support of politically powerful interest groups or partisan allies have their own hand in the cookie jar. For instance, the Real ID Act has come under fire from Ray Scheppach of the NGA, William Pound of the NCSL, Dan Sprague of the Council of State Governments, and Linda Lewis of AAMVA; who, in a letter delivered in March 2005 to Bill Frist and Harry Reid, declared the Real ID Act to be a “massive unfunded federal mandate.” Under these four relationship dynamics, opposition by any group can have a negative effect on federal mandates.

Complementary Goals in Federalism

Complementary goals can be achieved by working cooperatively and collaboratively, in a unique cohesive federalism. Moving from a more cohesive federalism to a more coercive federalism, our current government has become more competitive to achieve the greatest advantage for either the state or federal government. Dell Wright explains in Understanding Intergovernmental Relations that there are three main tools for overcoming coercive federalism and recreating cooperative federalism: problem solving, coping capabilities, and networking. Acknowledging any change in performance, Louise Comfort describes the change need “to occur within organizations, among organizations within a single jurisdiction, and between jurisdictions engaged in response to an extreme event.” First, to better problem solve, the federal and state governments can communicate, exchange information, and give feedback. These changes allow for the flow of information regarding necessities for intergovernmental relations. Second, to increase coping capabilities, critical policy making and authority should come from a decentralized framework that allows for multiple parties to be involved in the decision making process. Finally, to better network, the need for organization and adaptation among the state and federal government intensifies as the range of problems confronted widens. After implementation, cohesive federalism is achieved by maintaining complementary goals that aren’t in competition with one another.