1 / 16

Unfunded mandates: Directing subnational governments

Unfunded mandates: Directing subnational governments. Nico Steytler , Jaap de Visser & Robert Williams International Association of Centers for Federal Studies Speyer, 1 October 2011. Unfunded mandates. terminology ‘governing from the centre’ r educe policy space

lars
Télécharger la présentation

Unfunded mandates: Directing subnational governments

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Unfunded mandates: Directing subnational governments NicoSteytler, Jaap de Visser & Robert Williams International Association of Centers for Federal Studies Speyer, 1 October 2011

  2. Unfunded mandates • terminology • ‘governing from the centre’ • reduce policy space • limit expenditure choice and accountability • establish hierarchy • compare United States, Australia & South Africa

  3. What is an ‘unfunded mandate’? • US: “enforceable duty imposed on states, local authorities…or reduction or elimination of prior funding for compliance with such a duty” (1995 Unfunded Mandates Reform Act) • RSA: “duty, falls outside of constitutional powers and has financial implications” (Municipal Systems Act)

  4. What is an ‘unfunded mandate’? • depends who you ask • methods to define: • US/RSA: statute • AU: refrain from defining, use intergovernmental agreement • challenge of definitions • AU: history of ALGA/HoRdebate towards 2006 IGR agreement • US: critique UMRA definition • RSA: statutory definition uncertain/unused

  5. What is an ‘unfunded mandate’? • explicit transfer of duty by legislative / executive act some areas of contention • required to continue service provided/funded by ‘senior’ govt. (included in US) • required to provide innovative service / fill policy gaps • limiting revenue authority / lack of indexing (debated in AU)

  6. Areas of contention • compliance activity (excluded in US/RSA/AU) • minimum service standards (excluded in RSA/AU) • enforcing constitutional rights • US: excluded by UMRA • RSA: debated (who provides alternative housing for evictees?) • below threshold? • US: UMRA: > $50 Million

  7. How are unfunded mandates possible? US? • New York v United States (1992): “federal govt. may not commandeer state govts. into service of federal regulatory purpose” • but federal pre-emption: law within federal competence displaces state law (despite state competence) • US Supreme Court disposed to find conflict, sometimes leading to unfunded mandates • ‘strings attached’ to receipt of federal funds for functions in state competence • Underfunding / matching funds, combined with political pressure result in unfunded mandate

  8. South Africa / Australia South Africa • highly centralised federal system, very few limitations on national govt. to legislate on prov/local powers • LG regulated by both national and provincial govts. • Const. allows shifting functions to provinces and LG • no incentive for national-provincial mandates (provinces derive 97% of income from grants) • But widespread complaint in LG Australia • LG within domain of states • increasing federal interference in LG, including imposition of unfunded mandates

  9. Management and control of unfunded mandates • legal sanctions • political sanctions

  10. Legal sanctions • Prohibitions, reimbursement, delay, qualified majority etc. • Early US state laws contained restrictions • problem: legislature can’t bind future legislature •  US State constitutions • litigation ( some unintended results e.g. New Hampshire) •  political solutions (e.g. New Jersey)

  11. Political sanctions • US: federal Unfunded Mandate Reform Act of 1995 • No ban but compel Congress to consider cost • “stop, look and listen” • Congressional Budget Office • Device: unfunded mandate is out of order but may be overruled by simple majority • ‘weak’, not self-executing • relies on commitment of Congress • but provides access to information for states to lobby around

  12. Experience over 10 years • 12% of Bills contained unfunded mandate • 9% of thatexceeded threshold • point of order raised 12 times (HoR) • works best when states’ interests are similar

  13. South Africa: ‘consult, assess impact, then support when necessary’ • statutory rules, applicable to explicit transfer of duty to local govt. • by executive: LG may say no • by legislation?  • advice of Financial and Fiscal Commission • consult key ministries and LG association • three-year projection of financial impact • funding, capacity building must follow if necessary • assignment “has no force” unless Commission’s advice was considered • bind future legislature?

  14. Experience • never formally used/invoked (yet, Bill with unfunded mandates passed) • uncertainty over ‘trigger’ / application • absence of parliamentary protocol/rules • deterring effect?

  15. Australia • defining responsibilities and funding arrangements in intergovernmental agreement • consider consequential impact • respect right to say no • consultation

  16. In sum • definitions / magnitude contested • LG often ‘victim’ • two responses: • binding, legal (unintended consequences, judicial management, interpretational difficulties) • political, intergovernmental (subnational govt. relegated to ‘interest group’) • policy concerns may outweigh federalism / decentralisation concerns but debate is essential

More Related