-
1
-
-
0346215372
-
Turning Federalism Inside Out: Intrastate Aspects of Interstate Regulatory Competition
-
See Daniel B. Rodriguez, Turning Federalism Inside Out: Intrastate Aspects of Interstate Regulatory Competition, 14 YALE L. & POLY. REV. 149, 155 (1996).
-
(1996)
Yale L. & Poly. Rev.
, vol.14
, pp. 149
-
-
Rodriguez, D.B.1
-
2
-
-
0040176151
-
The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't
-
For a discussion of such competition, see Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 875-86 (1998).
-
(1998)
Mich. L. Rev.
, vol.96
, pp. 813
-
-
Hills R.M., Jr.1
-
3
-
-
0347544378
-
-
note
-
In the interest of conserving space, I will not discuss the ways in which judicially-imposed remedies such as consent decrees might be used to expand the powers of state or local agencies or officers. The effect of judicial orders and decrees on state or local officers' powers, however, is closely related to the issues raised in this article. In Missouri v. Jenkins, 495 U.S. 33 (1990), for instance, the Supreme Court held that a federal district court could desegregate public schools by authorizing the school district - nominally a defendant in the litigation - to raise property taxes in excess of the millage limits contained in the state constitution. By allowing such a remedy for a constitutional violation, the Court effectively allowed a federal district court to dissect the state by liberating a subdivision of a state from the control of state law.
-
-
-
-
4
-
-
0348174035
-
-
note
-
See Washington Dept. of Game v. Federal Power Commn., 207 F.2d 391, 396 (9th Cir. 1953). The Washington Supreme Court reached a different conclusion in City of Tacoma v. Taxpayers of Tacoma, 262 P.2d 214, 229 (Wash. 1953) [hereinafter City of Tacoma I], a decision that the U.S. Supreme Court reversed on the grounds that it was precluded by the Ninth Circuit's earlier decision of the same issue, see City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340 (1958) [hereinafter City of Tacoma III]. I discuss this convoluted controversy at infra notes 19-22 and accompanying text and infra section III.A.
-
-
-
-
5
-
-
0347544377
-
-
469 U.S. 256 (1985)
-
469 U.S. 256 (1985).
-
-
-
-
6
-
-
0347544376
-
-
See S.D. CODIFIED LAWS §5-11-6 (Michie 1993 & Supp. 1998)
-
See S.D. CODIFIED LAWS §5-11-6 (Michie 1993 & Supp. 1998).
-
-
-
-
7
-
-
0347544380
-
-
note
-
See Lawrence County, 469 U.S. at 269. I discuss Lawrence County at infra notes 104-19 and accompanying text.
-
-
-
-
8
-
-
0348174036
-
-
note
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); Mac Manus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); State ex rel. Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974). I discuss these cases in more detail at infra notes 155-156 and accompanying text.
-
-
-
-
9
-
-
0346913523
-
-
See infra note 21
-
See infra note 21.
-
-
-
-
10
-
-
0346913522
-
-
505 U.S. 144 (1992)
-
505 U.S. 144 (1992).
-
-
-
-
11
-
-
0347544382
-
-
521 U.S. 98 (1997)
-
521 U.S. 98 (1997).
-
-
-
-
12
-
-
0003640656
-
-
"Cooperative federalism" refers to intergovernmental cooperation between the federal and state or local governments, under which nonfederal officials implement federal policy, frequently receiving federal grant revenue in return. For general accounts of such intergovernmental relations, see TIMOTHY CONLAN, NEW FEDERALISM: INTERGOVERNMENTAL REFORM FROM NIXON TO REAGAN (1988); DAVID WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON (1995); DEIL S. WRIGHT, UNDERSTANDING INTERGOVERNMENTAL RELATIONS (3d ed. 1988).
-
(1988)
New Federalism: Intergovernmental Reform from Nixon to Reagan
-
-
Conlan, T.1
-
13
-
-
0003864258
-
-
"Cooperative federalism" refers to intergovernmental cooperation between the federal and state or local governments, under which nonfederal officials implement federal policy, frequently receiving federal grant revenue in return. For general accounts of such intergovernmental relations, see TIMOTHY CONLAN, NEW FEDERALISM: INTERGOVERNMENTAL REFORM FROM NIXON TO REAGAN (1988); DAVID WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON (1995); DEIL S. WRIGHT, UNDERSTANDING INTERGOVERNMENTAL RELATIONS (3d ed. 1988).
-
(1995)
The Rebirth of Federalism: Slouching Toward Washington
-
-
Walker, D.1
-
14
-
-
0003516682
-
-
"Cooperative federalism" refers to intergovernmental cooperation between the federal and state or local governments, under which nonfederal officials implement federal policy, frequently receiving federal grant revenue in return. For general accounts of such intergovernmental relations, see TIMOTHY CONLAN, NEW FEDERALISM: INTERGOVERNMENTAL REFORM FROM NIXON TO REAGAN (1988); DAVID WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON (1995); DEIL S. WRIGHT, UNDERSTANDING INTERGOVERNMENTAL RELATIONS (3d ed. 1988).
-
(1988)
Understanding Intergovernmental Relations 3d Ed.
-
-
Wright, D.S.1
-
15
-
-
0346283475
-
-
501 U.S. 452 (1991)
-
501 U.S. 452 (1991).
-
-
-
-
16
-
-
0346913613
-
-
See Gregory, 501 U.S. at 461
-
See Gregory, 501 U.S. at 461.
-
-
-
-
17
-
-
84860203913
-
Public Values in Statutory Interpretation
-
For a general account of how canons of statutory construction might be viewed as devices for advancing important polices or constitutional values, see William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007 (1989).
-
(1989)
U. Pa. L. Rev.
, vol.137
, pp. 1007
-
-
Eskridge W.N., Jr.1
-
18
-
-
0346283471
-
-
See infra section II.B.1
-
See infra section II.B.1.
-
-
-
-
19
-
-
0348174150
-
-
See infra section II.B.2
-
See infra section II.B.2.
-
-
-
-
20
-
-
0348174153
-
-
See In re City of Bridgeport, 128 B.R. 688 (Bankr. D. Conn. 1991)
-
See In re City of Bridgeport, 128 B.R. 688 (Bankr. D. Conn. 1991).
-
-
-
-
21
-
-
0346283478
-
-
note
-
The litigation surrounding the Cowlitz dam was convoluted and protracted, involving one decision by the Ninth Circuit, four decisions by the Washington Supreme Court, and one decision by the U.S. Supreme Court. See Washington Dept. of Game v. Federal Power Commn., 207 F.2d 391 (9th Cir. 1953); City of Tacoma v. Taxpayers of Tacoma, 371 P.2d 938 (Wash. 1962) [hereinafter City of Tacoma IV]; City of Tacoma v. Taxpayers of Tacoma, 307 P.2d 567 (Wash. 1957) [hereinafter City of Tacoma II], revd., City of Tacoma III, supra note 4, 357 U.S. 320 (1958); City of Tacoma I, supra note 4, 262 P.2d 214 (Wash. 1953); State ex rel. City of Tacoma v. Rogers, 203 P.2d 325 (Wash. 1949).
-
-
-
-
22
-
-
0347544493
-
-
See infra note 21
-
See infra note 21.
-
-
-
-
23
-
-
0346283510
-
-
Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936)
-
For an early judicial statement of this proposition, see Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936). Ashton held that the Municipal Bankruptcy Act of 1934 was unconstitutional because it regulated municipalities' power to declare bankruptcy, a matter that the Court held must be reserved to the state governments. The logic of Ashton was, however, somewhat strained: although the Court relied on the proposition that the state government had the exclusive right to control its own subdivisions, the federal act in question did not deprive any state of such control, as no municipality could file under the Act without permission from its state government. Thus, Ashton can be seen as limiting not merely the power of the federal government but also the power of the states to consent to any enlargement of federal powers. See generally MARTHA DERTHICK, THE INFLUENCE OF FEDERAL GRANTS: PUBLIC ASSISTANCE IN MASSACHUSETTS 16 (1970) (describing tradition that federal government can have access to local governments only by securing consent of state governments). Deil Wright refers to this view as the "coordinate authority" model of federalism. See WRIGHT, supra note 12, at 40-43.
-
-
-
-
24
-
-
0004182154
-
-
For an early judicial statement of this proposition, see Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936). Ashton held that the Municipal Bankruptcy Act of 1934 was unconstitutional because it regulated municipalities' power to declare bankruptcy, a matter that the Court held must be reserved to the state governments. The logic of Ashton was, however, somewhat strained: although the Court relied on the proposition that the state government had the exclusive right to control its own subdivisions, the federal act in question did not deprive any state of such control, as no municipality could file under the Act without permission from its state government. Thus, Ashton can be seen as limiting not merely the power of the federal government but also the power of the states to consent to any enlargement of federal powers. See generally MARTHA DERTHICK, THE INFLUENCE OF FEDERAL GRANTS: PUBLIC ASSISTANCE IN MASSACHUSETTS 16 (1970) (describing tradition that federal government can have access to local governments only by securing consent of state governments). Deil Wright refers to this view as the "coordinate authority" model of federalism. See WRIGHT, supra note 12, at 40-43.
-
(1970)
The Influence of Federal Grants: Public Assistance in Massachusetts
, pp. 16
-
-
Derthick, M.1
-
25
-
-
0348174151
-
-
City of Tacoma II, supra note 19, 307 P.2d at 567
-
City of Tacoma II, supra note 19, 307 P.2d at 567.
-
-
-
-
26
-
-
0346283476
-
-
See State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995)
-
See State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995).
-
-
-
-
27
-
-
0346283477
-
-
Johnson, 904 P.2d at 26
-
Johnson, 904 P.2d at 26.
-
-
-
-
28
-
-
0346913618
-
-
Johnson, 904 P.2d at 26
-
Johnson, 904 P.2d at 26.
-
-
-
-
29
-
-
0348174187
-
-
207 U.S. 161 (1907)
-
207 U.S. 161 (1907).
-
-
-
-
30
-
-
0347544494
-
-
Hunter, 207 U.S. at 178
-
Hunter, 207 U.S. at 178.
-
-
-
-
31
-
-
0348174154
-
-
17 U.S. (4 Wheat.) 518 (1819)
-
17 U.S. (4 Wheat.) 518 (1819).
-
-
-
-
32
-
-
0346913645
-
-
Dartmouth College, 17 U.S. (4 Wheat.) at 668, 682-83
-
Dartmouth College, 17 U.S. (4 Wheat.) at 668, 682-83. For a discussion of the origins and history of this distinction between private and municipal corporations, see Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 AM. U. L. REV. 369 (1985).
-
-
-
-
33
-
-
0347476597
-
The Invention of the Municipal Corporation: A Case Study in Legal Change
-
Dartmouth College, 17 U.S. (4 Wheat.) at 668, 682-83. For a discussion of the origins and history of this distinction between private and municipal corporations, see Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 AM. U. L. REV. 369 (1985).
-
(1985)
Am. U. L. Rev.
, vol.34
, pp. 369
-
-
Williams, J.C.1
-
34
-
-
0346283511
-
-
Hunter, 207 U.S. at 178-81
-
See Hunter, 207 U.S. at 178-81.
-
-
-
-
35
-
-
0348174133
-
-
note
-
See City of Boerne v. Flores, 117 S. Ct. 2157 (1997). To the extent that the voting rights of citizens are affected by a state's allocation of power among its municipalities, the Fourteenth Amendment's Equal Protection Clause and the Fifteenth Amendment might limit state control of its subdivisions. See, e.g., Washington v. Seattle Sch. Dist., 458 U.S. 457 (1982); Gomillion v. Lightfoot, 364 U.S. 341 (1960). Congress might, therefore, have the power to limit states' control over their municipalities as an appropriate way to enforce the voting rights of citizens under the Fourteenth and Fifteenth Amendments. See, e.g., City of Richmond v. United States, 422 U.S. 358 (1975) (requiring city's proposed annexation of county territory to be precleared by the Department of Justice pursuant to § 5 of the Voting Rights Act).
-
-
-
-
36
-
-
0346913614
-
-
Rogers v. Brockette, 588 F.2d 1057, 1064 (5th Cir. 1979)
-
Several lower courts have suggested that the Hunter doctrine does not limit Congress's powers to bestow statutory rights on local governments. See Rogers v. Brockette, 588 F.2d 1057, 1064 (5th Cir. 1979); San Diego Unified Port Dist. v. Gianturco, 457 F. Supp. 283 (S.D. Cal. 1978). Such a doctrine might be rooted in fears that the courts are institutionally incapable of deciding the difficult questions of institutional design raised by disputes about local governments' powers and territorial jurisdiction. See Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993).
-
-
-
-
37
-
-
0346913616
-
-
San Diego Unified Port Dist. v. Gianturco, 457 F. Supp. 283 (S.D. Cal. 1978)
-
Several lower courts have suggested that the Hunter doctrine does not limit Congress's powers to bestow statutory rights on local governments. See Rogers v. Brockette, 588 F.2d 1057, 1064 (5th Cir. 1979); San Diego Unified Port Dist. v. Gianturco, 457 F. Supp. 283 (S.D. Cal. 1978). Such a doctrine might be rooted in fears that the courts are institutionally incapable of deciding the difficult questions of institutional design raised by disputes about local governments' powers and territorial jurisdiction. See Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993).
-
-
-
-
38
-
-
39349093843
-
Who Rules at Home?: One Person/One Vote and Local Governments
-
Several lower courts have suggested that the Hunter doctrine does not limit Congress's powers to bestow statutory rights on local governments. See Rogers v. Brockette, 588 F.2d 1057, 1064 (5th Cir. 1979); San Diego Unified Port Dist. v. Gianturco, 457 F. Supp. 283 (S.D. Cal. 1978). Such a doctrine might be rooted in fears that the courts are institutionally incapable of deciding the difficult questions of institutional design raised by disputes about local governments' powers and territorial jurisdiction. See Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993).
-
(1993)
U. Chi. L. Rev.
, vol.60
, pp. 339
-
-
Briffault, R.1
-
39
-
-
0346913617
-
-
See, e.g., Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978)
-
See, e.g., Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
-
-
-
-
40
-
-
84933494621
-
Clothing State Governmental Entities in Sovereign Immunity: Disarray in the Eleventh Amendment Arm-of-the-State Doctrine
-
Note
-
For an overview of the jurisprudence, see Alex E. Rogers, Note, Clothing State Governmental Entities in Sovereign Immunity: Disarray in the Eleventh Amendment Arm-of-the-State Doctrine, 92 COLUM. L. REV. 1243 (1992).
-
(1992)
Colum. L. Rev.
, vol.92
, pp. 1243
-
-
Rogers, A.E.1
-
41
-
-
0348174155
-
-
note
-
See First Iowa Hydro-Electric Coop. v. Federal Power Commn., 328 U.S. 152, 164 (1946) ("To require [the co-op] to secure . . . a state permit . . . as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in [the state] a veto power over the federal project.").
-
-
-
-
42
-
-
0346283508
-
-
note
-
Of course, Congress would still have to authorize such preemption, and a presumption against wholesale creation of federal common law might lead courts to reject implicit preemption of state-law defenses. See O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994).
-
-
-
-
43
-
-
0001207777
-
The City as a Legal Concept
-
The most famous exposition of this position remains Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057 (1980). For a criticism of Frug's argument that cities are powerless, see Richard Briffault, Our Localism (part II), 90 COLUM. L. REV. 346 (1990).
-
(1980)
Harv. L. Rev.
, vol.93
, pp. 1057
-
-
Frug, G.E.1
-
44
-
-
0001961597
-
Our Localism (part II)
-
The most famous exposition of this position remains Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057 (1980). For a criticism of Frug's argument that cities are powerless, see Richard Briffault, Our Localism (part II), 90 COLUM. L. REV. 346 (1990).
-
(1990)
Colum. L. Rev.
, vol.90
, pp. 346
-
-
Briffault, R.1
-
45
-
-
0010944035
-
Cities and Homeowners Associations
-
For some defenses of the distinction between public and private corporations, see Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519 (1982).
-
(1982)
U. Pa. L. Rev.
, vol.130
, pp. 1519
-
-
Ellickson, R.C.1
-
46
-
-
0347544495
-
-
note
-
This "state autonomy" jurisprudence was the basis for the New Mexico Supreme Court's assertion that Congress could not enlarge the power of the governor to negotiate compacts with Indian tribes. See supra note 8.
-
-
-
-
47
-
-
0348174186
-
-
505 U.S. 144 (1992)
-
505 U.S. 144 (1992).
-
-
-
-
48
-
-
0346283509
-
-
521 U.S. 898 (1997)
-
521 U.S. 898 (1997).
-
-
-
-
49
-
-
0347544351
-
-
New York, 505 U.S. at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 288 (1981))
-
New York, 505 U.S. at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 288 (1981)).
-
-
-
-
50
-
-
0348174037
-
-
See New York, 505 U.S. at 168
-
See New York, 505 U.S. at 168.
-
-
-
-
51
-
-
0348174038
-
-
note
-
See Hills, supra note 2. Such confiscation of public organizations' resources, like confiscation of private organizations' property, is distributively unjust and economically inefficient: it forces public organizations (and the coalitions of voters that control them) to bear the costs of federal programs serving needs that state and local governments do not create, and it erodes the value of state and local political involvement to voters and politicians, reducing their incentive to vote, run for office, or otherwise engage in state or local political activity.
-
-
-
-
52
-
-
0348174152
-
-
note
-
Indeed, the conflict in New York can be regarded as an intrastate quarrel between the governor and the state legislature in which the federal government took the side of the governor. The Low-Level Radioactive Waste Policy Act Amendments of 1985 had been endorsed by Governor Cuomo (and the National Governors' Association); it was the New York state legislature that balked at implementing the federal law by choosing actual waste sites.
-
-
-
-
53
-
-
0347544492
-
-
note
-
See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (stating that the federal structure "increases opportunity for citizen involvement in democratic processes").
-
-
-
-
54
-
-
0002937977
-
Takings and the Police Power
-
See Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 67 (1964).
-
(1964)
Yale L.J.
, vol.74
, pp. 36
-
-
Sax, J.L.1
-
55
-
-
0346283387
-
-
495 U.S. 33 (1990)
-
495 U.S. 33 (1990).
-
-
-
-
56
-
-
0346913524
-
-
See Jenkins, 495 U.S. at 51
-
See Jenkins, 495 U.S. at 51.
-
-
-
-
57
-
-
0346283386
-
-
See Jenkins, 495 U.S. at 37
-
See Jenkins, 495 U.S. at 37.
-
-
-
-
58
-
-
0346913608
-
-
note
-
See, e.g., Spallone v. United States, 493 U.S. 265, 276 (1990) (holding that contempt sanctions can be imposed by judge against city to enforce consent decree remedying constitutional and statutory violations).
-
-
-
-
59
-
-
0348174146
-
-
See Hills, supra note 2, at 860 & n.167
-
See Hills, supra note 2, at 860 & n.167.
-
-
-
-
60
-
-
0039409075
-
Intergovernmental Change in the United States: An Assessment of the Literature
-
Trudi C. Miller ed.
-
For a summary of the literature, see Thomas J. Anton, Intergovernmental Change in the United States: An Assessment of the Literature, in PUBLIC SECTOR PERFORMANCE: A CONCEPTUAL TURNING POINT 15 (Trudi C. Miller ed., 1984).
-
(1984)
Public Sector Performance: A Conceptual Turning Point
, pp. 15
-
-
Anton, T.J.1
-
62
-
-
0348106564
-
Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court
-
See, e.g., Mark C. Gordon, Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court, 14 YALE L. & POLY. REV. 187, 211-12 (1996) (discussing the danger that informal relations among state and federal intergovernmental bureaucracy might suppress opportunities for citizen involvement in politics).
-
(1996)
Yale L. & Poly. Rev.
, vol.14
, pp. 187
-
-
Gordon, M.C.1
-
63
-
-
0013174210
-
-
See DONALD H. HAIDER, WHEN GOVERNMENTS COME TO WASHINGTON: GOVERNORS, MAYORS, AND INTERGOVERNMENTAL LOBBYING 60 (1974). For other accounts of the hostility to the complexity and redundancy of the intergovernmental system of categorical grants in the 1960s and early 1970s, see CONLAN, supra note 12, at 45-50; GARTH L. MANGUM, THE EMERGENCE OF MANPOWER POLICY 70-81 (1969).
-
(1974)
When Governments Come to Washington: Governors, Mayors, and Intergovernmental Lobbying
, pp. 60
-
-
Haider, D.H.1
-
64
-
-
0348174039
-
-
CONLAN, supra note 12, at 45-50
-
See DONALD H. HAIDER, WHEN GOVERNMENTS COME TO WASHINGTON: GOVERNORS, MAYORS, AND INTERGOVERNMENTAL LOBBYING 60 (1974). For other accounts of the hostility to the complexity and redundancy of the intergovernmental system of categorical grants in the 1960s and early 1970s, see CONLAN, supra note 12, at 45-50; GARTH L. MANGUM, THE EMERGENCE OF MANPOWER POLICY 70-81 (1969).
-
-
-
-
65
-
-
0346845997
-
-
See DONALD H. HAIDER, WHEN GOVERNMENTS COME TO WASHINGTON: GOVERNORS, MAYORS, AND INTERGOVERNMENTAL LOBBYING 60 (1974). For other accounts of the hostility to the complexity and redundancy of the intergovernmental system of categorical grants in the 1960s and early 1970s, see CONLAN, supra note 12, at 45-50; GARTH L. MANGUM, THE EMERGENCE OF MANPOWER POLICY 70-81 (1969).
-
(1969)
The Emergence of Manpower Policy
, pp. 70-81
-
-
Mangum, G.L.1
-
66
-
-
0003447218
-
-
For examples of such implementation literature, see EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES LAW (1977); MARTHA DERTHICK, NEW TOWNS IN-TOWN: WHY A FEDERAL PROGRAM FAILED (1972); JEFFREY L. PRESSMAN & AARON B. WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND (2d ed. 1979). For colorful examples of how such federal regulatory requirements might create obvious inefficiencies, see TERRY SANFORD, STORM OVER THE STATES 90-96 (1967).
-
(1977)
The Implementation Game: What Happens after a Bill Becomes Law
-
-
Bardach, E.1
-
67
-
-
0003996291
-
-
For examples of such implementation literature, see EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES LAW (1977); MARTHA DERTHICK, NEW TOWNS IN-TOWN: WHY A FEDERAL PROGRAM FAILED (1972); JEFFREY L. PRESSMAN & AARON B. WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND (2d ed. 1979). For colorful examples of how such federal regulatory requirements might create obvious inefficiencies, see TERRY SANFORD, STORM OVER THE STATES 90-96 (1967).
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(1972)
New Towns In-Town: Why a Federal Program Failed
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Derthick, M.1
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68
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0003471224
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For examples of such implementation literature, see EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES LAW (1977); MARTHA DERTHICK, NEW TOWNS IN-TOWN: WHY A FEDERAL PROGRAM FAILED (1972); JEFFREY L. PRESSMAN & AARON B. WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND (2d ed. 1979). For colorful examples of how such federal regulatory requirements might create obvious inefficiencies, see TERRY SANFORD, STORM OVER THE STATES 90-96 (1967).
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(1979)
Implementation: How Great Expectations in Washington Are Dashed in Oakland 2d Ed.
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Pressman, J.L.1
Wildavsky, A.B.2
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69
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0039737295
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For examples of such implementation literature, see EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES LAW (1977); MARTHA DERTHICK, NEW TOWNS IN-TOWN: WHY A FEDERAL PROGRAM FAILED (1972); JEFFREY L. PRESSMAN & AARON B. WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND (2d ed. 1979). For colorful examples of how such federal regulatory requirements might create obvious inefficiencies, see TERRY SANFORD, STORM OVER THE STATES 90-96 (1967).
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(1967)
Storm over the States
, pp. 90-96
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Sanford, T.1
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70
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84934562047
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See PAUL E. PETERSON ET AL., WHEN FEDERALISM WORKS 216-17 (1986) (noting that typical attacks on Johnson's Creative Federalism and Nixon's New Federalism frequently "substitute flamboyant rhetoric for careful analysis").
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(1986)
When Federalism Works
, pp. 216-217
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Peterson, P.E.1
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71
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0004231661
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The classic statement of these state and local incentives to avoid redistribution of wealth is PAUL E. PETERSON, CITY LIMITS 71-82 (1981). Peterson and Mark Rom provide empirical evidence suggesting that state governments struggle to avoid becoming "welfare magnets" in PAUL E. PETERSON & MARK C. ROM, WELFARE MAGNETS (1990). According to Peterson and Rom, states cut their AFDC and Medicaid benefits by $30 per recipient for every $100 of benefits paid by the state in the preceding year above the level of benefits paid by the average contiguous state. See id. at 75-83. For more recent findings confirming these results, see Mark Carl Rom et al., Interstate Competition and Welfare Policy. PUBLIUS, Summer 1998, at 17. A decade after Senator Muskie's hearings denouncing the inefficiency of federal bureaucratic intrusion into state and local governments, William Proxmire held hearings to denounce local politicians' habitual diversion of Community Development Block Grant money from assistance of low-income neighborhoods to economic development. For an account of such hearings, see MICHAEL J. RICH, FEDERAL POLICYMAKING AND THE POOR: NATIONAL GOALS, LOCAL CHOICES, AND DISTRIBUTIONAL OUTCOMES 341-42 (1993).
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(1981)
City Limits
, pp. 71-82
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Peterson, P.E.1
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72
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0003668990
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The classic statement of these state and local incentives to avoid redistribution of wealth is PAUL E. PETERSON, CITY LIMITS 71-82 (1981). Peterson and Mark Rom provide empirical evidence suggesting that state governments struggle to avoid becoming "welfare magnets" in PAUL E. PETERSON & MARK C. ROM, WELFARE MAGNETS (1990). According to Peterson and Rom, states cut their AFDC and Medicaid benefits by $30 per recipient for every $100 of benefits paid by the state in the preceding year above the level of benefits paid by the average contiguous state. See id. at 75-83. For more recent findings confirming these results, see Mark Carl Rom et al., Interstate Competition and Welfare Policy. PUBLIUS, Summer 1998, at 17. A decade after Senator Muskie's hearings denouncing the inefficiency of federal bureaucratic intrusion into state and local governments, William Proxmire held hearings to denounce local politicians' habitual diversion of Community Development Block Grant money from assistance of low-income neighborhoods to economic development. For an account of such hearings, see MICHAEL J. RICH, FEDERAL POLICYMAKING AND THE POOR: NATIONAL GOALS, LOCAL CHOICES, AND DISTRIBUTIONAL OUTCOMES 341-42 (1993).
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(1990)
Welfare Magnets
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Peterson, P.E.1
Rom, M.C.2
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73
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0040428106
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Interstate Competition and Welfare Policy
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Summer
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The classic statement of these state and local incentives to avoid redistribution of wealth is PAUL E. PETERSON, CITY LIMITS 71-82 (1981). Peterson and Mark Rom provide empirical evidence suggesting that state governments struggle to avoid becoming "welfare magnets" in PAUL E. PETERSON & MARK C. ROM, WELFARE MAGNETS (1990). According to Peterson and Rom, states cut their AFDC and Medicaid benefits by $30 per recipient for every $100 of benefits paid by the state in the preceding year above the level of benefits paid by the average contiguous state. See id. at 75-83. For more recent findings confirming these results, see Mark Carl Rom et al., Interstate Competition and Welfare Policy. PUBLIUS, Summer 1998, at 17. A decade after Senator Muskie's hearings denouncing the inefficiency of federal bureaucratic intrusion into state and local governments, William Proxmire held hearings to denounce local politicians' habitual diversion of Community Development Block Grant money from assistance of low-income neighborhoods to economic development. For an account of such hearings, see MICHAEL J. RICH, FEDERAL POLICYMAKING AND THE POOR: NATIONAL GOALS, LOCAL CHOICES, AND DISTRIBUTIONAL OUTCOMES 341-42 (1993).
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(1998)
Publius
, pp. 17
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Rom, M.C.1
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74
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28444480019
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The classic statement of these state and local incentives to avoid redistribution of wealth is PAUL E. PETERSON, CITY LIMITS 71-82 (1981). Peterson and Mark Rom provide empirical evidence suggesting that state governments struggle to avoid becoming "welfare magnets" in PAUL E. PETERSON & MARK C. ROM, WELFARE MAGNETS (1990). According to Peterson and Rom, states cut their AFDC and Medicaid benefits by $30 per recipient for every $100 of benefits paid by the state in the preceding year above the level of benefits paid by the average contiguous state. See id. at 75-83. For more recent findings confirming these results, see Mark Carl Rom et al., Interstate Competition and Welfare Policy. PUBLIUS, Summer 1998, at 17. A decade after Senator Muskie's hearings denouncing the inefficiency of federal bureaucratic intrusion into state and local governments, William Proxmire held hearings to denounce local politicians' habitual diversion of Community Development Block Grant money from assistance of low-income neighborhoods to economic development. For an account of such hearings, see MICHAEL J. RICH, FEDERAL POLICYMAKING AND THE POOR: NATIONAL GOALS, LOCAL CHOICES, AND DISTRIBUTIONAL OUTCOMES 341-42 (1993).
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(1993)
Federal Policymaking and the Poor: National Goals, Local Choices, and Distributional Outcomes
, pp. 341-342
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Rich, M.J.1
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75
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0347476594
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Professional Fiefdoms Appraised: The Case of Social Services
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Spring
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For an instance in which control of federal grants by federal agency specialists may have been necessary to prevent waste of federal money, see Martha Derthick, Professional Fiefdoms Appraised: The Case of Social Services, PUBLIUS, Spring 1976, at 121-34.
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(1976)
Publius
, pp. 121-134
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Derthick, M.1
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76
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0347544381
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note
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Even Peterson, Rabe, and Wong note that the intergovernmental system of the 1960s and 1970s suffered initially from excessively detailed regulations, tight audits, and overly complex evaluations that were relaxed only in response to complaints by state and local politicians about excessive federal interference with nonfederal political structures. See id. at 140-47.
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77
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In 1987, the Bureau of the Census reported 3,042 counties, 19,205 municipalities, 16,691 townships, 14,741 school districts, and 29,487 special districts. See VINCENT OSTROM ET AL., LOCAL GOVERNMENT IN THE UNITED STATES 3 (1988) (citing 1987 CENSUS GOVTS. prelim. rep., at 1).
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(1988)
Local Government in the United States
, pp. 3
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Ostrom, V.1
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78
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0347544379
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In 1987, the Bureau of the Census reported 3,042 counties, 19,205 municipalities, 16,691 townships, 14,741 school districts, and 29,487 special districts. See VINCENT OSTROM ET AL., LOCAL GOVERNMENT IN THE UNITED STATES 3 (1988) (citing 1987 CENSUS GOVTS. prelim. rep., at 1).
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(1987)
Census Govts. Prelim. Rep.
, pp. 1
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79
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For a recent study of (and attack on) the "fragmentation" of metropolitan areas into large numbers of competing municipalities, see DAVID RUSK, CITIES WITHOUT SUBURBS 34 (1993). For a more favorable assessment of such fragmentation, see generally MARK SCHNEIDER, THE COMPETITIVE CITY: THE POLITICAL ECONOMY OF SUBURBIA (1989).
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(1993)
Cities Without Suburbs
, pp. 34
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Rusk, D.1
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80
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0003718412
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For a recent study of (and attack on) the "fragmentation" of metropolitan areas into large numbers of competing municipalities, see DAVID RUSK, CITIES WITHOUT SUBURBS 34 (1993). For a more favorable assessment of such fragmentation, see generally MARK SCHNEIDER, THE COMPETITIVE CITY: THE POLITICAL ECONOMY OF SUBURBIA (1989).
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(1989)
The Competitive City: The Political Economy of Suburbia
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Schneider, M.1
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81
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0009964397
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6th ed.
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For some recent surveys of state-local legal relations in different states, see POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS 60-70 (Virginia Gray & Herbert Jacob eds., 6th ed. 1996); A DECADE OF DEVOLUTION: PERSPECTIVES ON STATE-LOCAL RELATIONS (E. Blaine Liner ed., 1989).
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(1996)
Politics in the American States: A Comparative Analysis
, pp. 60-70
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Gray, V.1
Jacob, H.2
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83
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0003563837
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3d ed.
-
According to Daniel Elazar, different states and regions have different political cultures, meaning different attitudes toward government, the marketplace, democratic control, and bureaucracy. Elazar characterizes these cultures as "traditionalistic," "individualistic," or "moralistic." See DANIEL ELAZAR, AMERICAN FEDERALISM: THE VIEW FROM THE STATES 110-31 (3d ed. 1984). "Moralistic" cultures tend to believe that the government serves the public welfare; that professionalized bureaucracies ought to deliver public services; that citizens ought to participate widely in political deliberation; and that such debate should be based on the issues rather than partisan affiliation. By contrast, "individualistic" cultures tend to distrust government, regard politics as "dirty," and wish to limit governmental activity to regulation of imperfections in the marketplace. Massachusetts tends toward "moralistic" politics, whereas Arizona tends toward an "individualistic" political culture. See id. at 124-25. Subsequent research confirms that different political cultures create different voter attitudes toward government and different networks of political connections even between otherwise geographically, ethnically, culturally, and socially similar municipalities. See Arthur R. Stevens, State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio, PUBLIUS, Winter 1974, at 111. For more recent literature exploring Elazar's "subculture" thesis, see generally Symposium, State Political Subcultures: Further Research, PUBLIUS, Spring 1991, at 1. These political cultures can affect the degree to which a state supervises local governmental activity. See ELAZAR, supra, at 219-20. "Moralistic" political cultures in Massachusetts, for instance, tend to encourage localism. "Traditionalistic" regimes in the Southeast tend to discourage such autonomy. See id. at 118.
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(1984)
American Federalism: The View from the States
, pp. 110-131
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Elazar, D.1
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84
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0346930016
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State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio
-
Winter
-
According to Daniel Elazar, different states and regions have different political cultures, meaning different attitudes toward government, the marketplace, democratic control, and bureaucracy. Elazar characterizes these cultures as "traditionalistic," "individualistic," or "moralistic." See DANIEL ELAZAR, AMERICAN FEDERALISM: THE VIEW FROM THE STATES 110-31 (3d ed. 1984). "Moralistic" cultures tend to believe that the government serves the public welfare; that professionalized bureaucracies ought to deliver public services; that citizens ought to participate widely in political deliberation; and that such debate should be based on the issues rather than partisan affiliation. By contrast, "individualistic" cultures tend to distrust government, regard politics as "dirty," and wish to limit governmental activity to regulation of imperfections in the marketplace. Massachusetts tends toward "moralistic" politics, whereas Arizona tends toward an "individualistic" political culture. See id. at 124-25. Subsequent research confirms that different political cultures create different voter attitudes toward government and different networks of political connections even between otherwise geographically, ethnically, culturally, and socially similar municipalities. See Arthur R. Stevens, State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio, PUBLIUS, Winter 1974, at 111. For more recent literature exploring Elazar's "subculture" thesis, see generally Symposium, State Political Subcultures: Further Research, PUBLIUS, Spring 1991, at 1. These political cultures can affect the degree to which a state supervises local governmental activity. See ELAZAR, supra, at 219-20. "Moralistic" political cultures in Massachusetts, for instance, tend to encourage localism. "Traditionalistic" regimes in the Southeast tend to discourage such autonomy. See id. at 118.
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(1974)
Publius
, pp. 111
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Stevens, A.R.1
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85
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0346215354
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State Political Subcultures: Further Research
-
Symposium, Spring
-
According to Daniel Elazar, different states and regions have different political cultures, meaning different attitudes toward government, the marketplace, democratic control, and bureaucracy. Elazar characterizes these cultures as "traditionalistic," "individualistic," or "moralistic." See DANIEL ELAZAR, AMERICAN FEDERALISM: THE VIEW FROM THE STATES 110-31 (3d ed. 1984). "Moralistic" cultures tend to believe that the government serves the public welfare; that professionalized bureaucracies ought to deliver public services; that citizens ought to participate widely in political deliberation; and that such debate should be based on the issues rather than partisan affiliation. By contrast, "individualistic" cultures tend to distrust government, regard politics as "dirty," and wish to limit governmental activity to regulation of imperfections in the marketplace. Massachusetts tends toward "moralistic" politics, whereas Arizona tends toward an "individualistic" political culture. See id. at 124-25. Subsequent research confirms that different political cultures create different voter attitudes toward government and different networks of political connections even between otherwise geographically, ethnically, culturally, and socially similar municipalities. See Arthur R. Stevens, State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio, PUBLIUS, Winter 1974, at 111. For more recent literature exploring Elazar's "subculture" thesis, see generally Symposium, State Political Subcultures: Further Research, PUBLIUS, Spring 1991, at 1. These political cultures can affect the degree to which a state supervises local governmental activity. See ELAZAR, supra, at 219-20. "Moralistic" political cultures in Massachusetts, for instance, tend to encourage localism. "Traditionalistic" regimes in the Southeast tend to discourage such autonomy. See id. at 118.
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(1991)
Publius
, pp. 1
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86
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0348174041
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ELAZAR, supra, at 219-20
-
According to Daniel Elazar, different states and regions have different political cultures, meaning different attitudes toward government, the marketplace, democratic control, and bureaucracy. Elazar characterizes these cultures as "traditionalistic," "individualistic," or "moralistic." See DANIEL ELAZAR, AMERICAN FEDERALISM: THE VIEW FROM THE STATES 110-31 (3d ed. 1984). "Moralistic" cultures tend to believe that the government serves the public welfare; that professionalized bureaucracies ought to deliver public services; that citizens ought to participate widely in political deliberation; and that such debate should be based on the issues rather than partisan affiliation. By contrast, "individualistic" cultures tend to distrust government, regard politics as "dirty," and wish to limit governmental activity to regulation of imperfections in the marketplace. Massachusetts tends toward "moralistic" politics, whereas Arizona tends toward an "individualistic" political culture. See id. at 124-25. Subsequent research confirms that different political cultures create different voter attitudes toward government and different networks of political connections even between otherwise geographically, ethnically, culturally, and socially similar municipalities. See Arthur R. Stevens, State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio, PUBLIUS, Winter 1974, at 111. For more recent literature exploring Elazar's "subculture" thesis, see generally Symposium, State Political Subcultures: Further Research, PUBLIUS, Spring 1991, at 1. These political cultures can affect the degree to which a state supervises local governmental activity. See ELAZAR, supra, at 219-20. "Moralistic" political cultures in Massachusetts, for instance, tend to encourage localism. "Traditionalistic" regimes in the Southeast tend to discourage such autonomy. See id. at 118.
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88
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0348174042
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CONLAN, supra note 12, at 37-38, 41-43
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Of course, Congress could theoretically create its own regionally elected agents -what one might call federal prefects - to supervise the actions of federal field offices. But Congress historically has been reluctant to delegate broad policymaking discretion to elected officers, in part because members of Congress like to take credit for performing casework for their constituents and jealously guard this prerogative from rival politicians. Several commentators have noted that Congress has been reluctant to bestow unrestricted revenue on state and local politicians because such revenue sharing would enable state and local politicians to take credit for federal policies, eliminating opportunities for ribbon-cutting and other visible credit-taking by Congress. See, e.g., CONLAN, supra note 12, at 37-38, 41-43 (noting reluctance of Congress to yield control of categorical programs because such grants are "the perkiest of pork" for which Congress can claim credit at election time, and arguing that "block grants pose a threat to the self-interests of congressmen . . . because they diminish opportunities for advertising, credit claiming, and casework"); MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 73-74 (2d ed. 1989); HAIDER, supra note 56, at 66 (describing reluctance of Congress to enact a revenue-sharing plan and to provide open-ended grants of revenue to its "rivals and adversaries"); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 128-29 (1974).
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-
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89
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0346845995
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2d ed.
-
Of course, Congress could theoretically create its own regionally elected agents - what one might call federal prefects - to supervise the actions of federal field offices. But Congress historically has been reluctant to delegate broad policymaking discretion to elected officers, in part because members of Congress like to take credit for performing casework for their constituents and jealously guard this prerogative from rival politicians. Several commentators have noted that Congress has been reluctant to bestow unrestricted revenue on state and local politicians because such revenue sharing would enable state and local politicians to take credit for federal policies, eliminating opportunities for ribbon-cutting and other visible credit-taking by Congress. See, e.g., CONLAN, supra note 12, at 37-38, 41-43 (noting reluctance of Congress to yield control of categorical programs because such grants are "the perkiest of pork" for which Congress can claim credit at election time, and arguing that "block grants pose a threat to the self-interests of congressmen . . . because they diminish opportunities for advertising, credit claiming, and casework"); MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 73-74 (2d ed. 1989); HAIDER, supra note 56, at 66 (describing reluctance of Congress to enact a revenue-sharing plan and to provide open-ended grants of revenue to its "rivals and adversaries"); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 128-29 (1974).
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(1989)
Congress: Keystone of the Washington Establishment
, pp. 73-74
-
-
Fiorina, M.P.1
-
90
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0348174040
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HAIDER, supra note 56, at 66
-
Of course, Congress could theoretically create its own regionally elected agents - what one might call federal prefects - to supervise the actions of federal field offices. But Congress historically has been reluctant to delegate broad policymaking discretion to elected officers, in part because members of Congress like to take credit for performing casework for their constituents and jealously guard this prerogative from rival politicians. Several commentators have noted that Congress has been reluctant to bestow unrestricted revenue on state and local politicians because such revenue sharing would enable state and local politicians to take credit for federal policies, eliminating opportunities for ribbon-cutting and other visible credit-taking by Congress. See, e.g., CONLAN, supra note 12, at 37-38, 41-43 (noting reluctance of Congress to yield control of categorical programs because such grants are "the perkiest of pork" for which Congress can claim credit at election time, and arguing that "block grants pose a threat to the self-interests of congressmen . . . because they diminish opportunities for advertising, credit claiming, and casework"); MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 73-74 (2d ed. 1989); HAIDER, supra note 56, at 66 (describing reluctance of Congress to enact a revenue-sharing plan and to provide open-ended grants of revenue to its "rivals and adversaries"); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 128-29 (1974).
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-
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91
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0348106570
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Of course, Congress could theoretically create its own regionally elected agents - what one might call federal prefects - to supervise the actions of federal field offices. But Congress historically has been reluctant to delegate broad policymaking discretion to elected officers, in part because members of Congress like to take credit for performing casework for their constituents and jealously guard this prerogative from rival politicians. Several commentators have noted that Congress has been reluctant to bestow unrestricted revenue on state and local politicians because such revenue sharing would enable state and local politicians to take credit for federal policies, eliminating opportunities for ribbon-cutting and other visible credit-taking by Congress. See, e.g., CONLAN, supra note 12, at 37-38, 41-43 (noting reluctance of Congress to yield control of categorical programs because such grants are "the perkiest of pork" for which Congress can claim credit at election time, and arguing that "block grants pose a threat to the self-interests of congressmen . . . because they diminish opportunities for advertising, credit claiming, and casework"); MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 73-74 (2d ed. 1989); HAIDER, supra note 56, at 66 (describing reluctance of Congress to enact a revenue-sharing plan and to provide open-ended grants of revenue to its "rivals and adversaries"); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 128-29 (1974).
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(1974)
Congress: The Electoral Connection
, pp. 128-129
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Mayhew, D.R.1
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92
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84971751165
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Street-Level Political Controls over Federal Bureaucracy
-
See John T. Scholz et al., Street-Level Political Controls Over Federal Bureaucracy, 85 AM. POL. SCI. REV. 829, 833-34 (1991).
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(1991)
Am. Pol. Sci. Rev.
, vol.85
, pp. 829
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Scholz, J.T.1
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93
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0346283385
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DERTHICK, supra note 21, at 196
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See DERTHICK, supra note 21, at 196 (noting that political conflict prevents federal government from aggressively pursuing policies); RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 77 (1973) (describing partisan conflict on Congressional Education and Labor Committees). For a popular account of the propensity of the federal government toward gridlock, see JONATHAN RAUCH, DEMOSCLEROSIS: THE SILENT KILLER OF AMERICAN GOVERNMENT (1994).
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94
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0348106569
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See DERTHICK, supra note 21, at 196 (noting that political conflict prevents federal government from aggressively pursuing policies); RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 77 (1973) (describing partisan conflict on Congressional Education and Labor Committees). For a popular account of the propensity of the federal government toward gridlock, see JONATHAN RAUCH, DEMOSCLEROSIS: THE SILENT KILLER OF AMERICAN GOVERNMENT (1994).
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(1973)
Congressmen in Committees
, pp. 77
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Fenno R.F., Jr.1
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95
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0003955024
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See DERTHICK, supra note 21, at 196 (noting that political conflict prevents federal government from aggressively pursuing policies); RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 77 (1973) (describing partisan conflict on Congressional Education and Labor Committees). For a popular account of the propensity of the federal government toward gridlock, see JONATHAN RAUCH, DEMOSCLEROSIS: THE SILENT KILLER OF AMERICAN GOVERNMENT (1994).
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(1994)
Demosclerosis: The Silent Killer of American Government
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Rauch, J.1
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96
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0347544489
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Scholz et al., supra note 68, at 842-48
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See Scholz et al., supra note 68, at 842-48; B. Dan Wood, Modeling Federal Implementation as a System: The Clean Air Case, 36 AM. J. POL. SCI. 40, 56-59 (1992).
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97
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84933496440
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Modeling Federal Implementation as a System: The Clean Air Case
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See Scholz et al., supra note 68, at 842-48; B. Dan Wood, Modeling Federal Implementation as a System: The Clean Air Case, 36 AM. J. POL. SCI. 40, 56-59 (1992).
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(1992)
Am. J. Pol. Sci.
, vol.36
, pp. 40
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Wood, B.D.1
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98
-
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0000778367
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A Pure Theory of Local Expenditures
-
See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). For a nicely written summary of recent literature in layperson's terms, see WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 254-69 (1995). For a more detailed analysis and empirical confirmation of this neo-Tiebout position, see MARK SCHNEIDER ET AL., PUBLIC ENTREPRENEURS: AGENTS FOR CHANGE IN AMERICAN GOVERNMENT (1995), and SCHNEIDER, supra note 63.
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(1956)
J. Pol. Econ.
, vol.64
, pp. 416
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Tiebout, C.M.1
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99
-
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0003440232
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See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). For a nicely written summary of recent literature in layperson's terms, see WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 254-69 (1995). For a more detailed analysis and empirical confirmation of this neo-Tiebout position, see MARK SCHNEIDER ET AL., PUBLIC ENTREPRENEURS: AGENTS FOR CHANGE IN AMERICAN GOVERNMENT (1995), and SCHNEIDER, supra note 63.
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(1995)
Regulatory Takings: Law, Economics, and Politics
, pp. 254-269
-
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Fischel, W.A.1
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100
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0003444965
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See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). For a nicely written summary of recent literature in layperson's terms, see WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 254-69 (1995). For a more detailed analysis and empirical confirmation of this neo-Tiebout position, see MARK SCHNEIDER ET AL., PUBLIC ENTREPRENEURS: AGENTS FOR CHANGE IN AMERICAN GOVERNMENT (1995), and SCHNEIDER, supra note 63.
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(1995)
Public Entrepreneurs: Agents for Change in American Government
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Schneider, M.1
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101
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0346283470
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SCHNEIDER, supra note 63
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See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). For a nicely written summary of recent literature in layperson's terms, see WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 254-69 (1995). For a more detailed analysis and empirical confirmation of this neo-Tiebout position, see MARK SCHNEIDER ET AL., PUBLIC ENTREPRENEURS: AGENTS FOR CHANGE IN AMERICAN GOVERNMENT (1995), and SCHNEIDER, supra note 63.
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102
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0004040631
-
-
See ROBERT M. STEIN, URBAN ALTERNATIVES: PUBLIC AND PRIVATE MARKETS IN THE PROVISION OF LOCAL SERVICES (1990); Mark Schneider, Intermunicipal Competition, Budget-Maximizing Bureaucrats, and the Level of Suburban Competition, 33 AM. J. POL. SCI. 612 (1989). For a debate about whether evidence for such competition exists, see Albert Breton, The Existence and Stability of Interjurisdictional Competition in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUITY IN AMERICAN FEDERALISM 37-63 (Daphne A. Kenyon & John Kincaid eds., 1991), and John E. Chubb, How Relevant Is Competition to Government Policymaking?, in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS, supra, at 37-63.
-
(1990)
Urban Alternatives: Public and Private Markets in the Provision of Local Services
-
-
Stein, R.M.1
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103
-
-
84928846101
-
Intermunicipal Competition, Budget-Maximizing Bureaucrats, and the Level of Suburban Competition
-
See ROBERT M. STEIN, URBAN ALTERNATIVES: PUBLIC AND PRIVATE MARKETS IN THE PROVISION OF LOCAL SERVICES (1990); Mark Schneider, Intermunicipal Competition, Budget-Maximizing Bureaucrats, and the Level of Suburban Competition, 33 AM. J. POL. SCI. 612 (1989). For a debate about whether evidence for such competition exists, see Albert Breton, The Existence and Stability of Interjurisdictional Competition in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUITY IN AMERICAN FEDERALISM 37-63 (Daphne A. Kenyon & John Kincaid eds., 1991), and John E. Chubb, How Relevant Is Competition to Government Policymaking?, in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS, supra, at 37-63.
-
(1989)
Am. J. Pol. Sci.
, vol.33
, pp. 612
-
-
Schneider, M.1
-
104
-
-
0010907102
-
The Existence and Stability of Interjurisdictional Competition
-
Daphne A. Kenyon & John Kincaid eds.
-
See ROBERT M. STEIN, URBAN ALTERNATIVES: PUBLIC AND PRIVATE MARKETS IN THE PROVISION OF LOCAL SERVICES (1990); Mark Schneider, Intermunicipal Competition, Budget-Maximizing Bureaucrats, and the Level of Suburban Competition, 33 AM. J. POL. SCI. 612 (1989). For a debate about whether evidence for such competition exists, see Albert Breton, The Existence and Stability of Interjurisdictional Competition in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUITY IN AMERICAN FEDERALISM 37-63 (Daphne A. Kenyon & John Kincaid eds., 1991), and John E. Chubb, How Relevant Is Competition to Government Policymaking?, in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS, supra, at 37-63.
-
(1991)
Competition among States and Local Governments: Efficiency and Equity in American Federalism
, pp. 37-63
-
-
Breton, A.1
-
105
-
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0346845993
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How Relevant Is Competition to Government Policymaking?
-
supra
-
See ROBERT M. STEIN, URBAN ALTERNATIVES: PUBLIC AND PRIVATE MARKETS IN THE PROVISION OF LOCAL SERVICES (1990); Mark Schneider, Intermunicipal Competition, Budget-Maximizing Bureaucrats, and the Level of Suburban Competition, 33 AM. J. POL. SCI. 612 (1989). For a debate about whether evidence for such competition exists, see Albert Breton, The Existence and Stability of Interjurisdictional Competition in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUITY IN AMERICAN FEDERALISM 37-63 (Daphne A. Kenyon & John Kincaid eds., 1991), and John E. Chubb, How Relevant Is Competition to Government Policymaking?, in COMPETITION AMONG STATES AND LOCAL GOVERNMENTS, supra, at 37-63.
-
Competition among States and Local Governments
, pp. 37-63
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Chubb, J.E.1
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106
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0007777484
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Centralization and Government Competition
-
See, e.g., David Joulfaian & Michael L. Marlow, Centralization and Government Competition, 23 APPLIED ECON. 1603 (1991).
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(1991)
Applied Econ.
, vol.23
, pp. 1603
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Joulfaian, D.1
Marlow, M.L.2
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108
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0346283474
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note
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See, e.g., Oklahoma v. United States Civil Serv. Commn., 330 U.S. 127, 143 (1947) (requiring Oklahoma to forgo federal grant revenue if it refused to comply with federal demands that state officials be governed by merit system).
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-
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109
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0017538505
-
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Hills, supra note 2, at 871-93.
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See Hills, supra note 2, at 871-93. Contrary to the popular myth that state officials cannot say "no" to federal money, there is considerable evidence that nonfederal officials carefully compare the costs and benefits of federal grants, declining grants where the costs of the conditions outweigh the value of the money. See WRIGHT, supra note 12, at 91; Hills, supra note 2, at 858-65; Helen Ingram, Policy Implementation Through Bargaining: The Case of Federal Grants-in-Aid, 25 PUB. POL. 499 (1977).
-
-
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110
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0017538505
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WRIGHT, supra note 12, at 91
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See Hills, supra note 2, at 871-93. Contrary to the popular myth that state officials cannot say "no" to federal money, there is considerable evidence that nonfederal officials carefully compare the costs and benefits of federal grants, declining grants where the costs of the conditions outweigh the value of the money. See WRIGHT, supra note 12, at 91; Hills, supra note 2, at 858-65; Helen Ingram, Policy Implementation Through Bargaining: The Case of Federal Grants-in-Aid, 25 PUB. POL. 499 (1977).
-
-
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111
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0017538505
-
-
Hills, supra note 2, at 858-65
-
See Hills, supra note 2, at 871-93. Contrary to the popular myth that state officials cannot say "no" to federal money, there is considerable evidence that nonfederal officials carefully compare the costs and benefits of federal grants, declining grants where the costs of the conditions outweigh the value of the money. See WRIGHT, supra note 12, at 91; Hills, supra note 2, at 858-65; Helen Ingram, Policy Implementation Through Bargaining: The Case of Federal Grants-in-Aid, 25 PUB. POL. 499 (1977).
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-
-
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112
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0017538505
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Policy Implementation Through Bargaining: The Case of Federal Grants-in-Aid
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See Hills, supra note 2, at 871-93. Contrary to the popular myth that state officials cannot say "no" to federal money, there is considerable evidence that nonfederal officials carefully compare the costs and benefits of federal grants, declining grants where the costs of the conditions outweigh the value of the money. See WRIGHT, supra note 12, at 91; Hills, supra note 2, at 858-65; Helen Ingram, Policy Implementation Through Bargaining: The Case of Federal Grants-in-Aid, 25 PUB. POL. 499 (1977).
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(1977)
Pub. Pol.
, vol.25
, pp. 499
-
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Ingram, H.1
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113
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0347544483
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See Hills, supra note 2, at 872-75
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See Hills, supra note 2, at 872-75.
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0003965377
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One might compare this federal decision to forgo cooperative federalism in the face of recalcitrant states to the decision of a firm to use vertically integrated divisions rather than incur the additional costs of monitoring independent contractors that are likely to be faithless agents. For an analysis of how the costs of multiple contracts and agency costs might drive a firm to produce goods and services "in-house" rather than through contract with other firms, see OLIVER E. WILLIAMSON, MARKETS AND HIERARCHIES: ANALYSIS AND ANTITRUST IMPLICATIONS (1975).
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(1975)
Markets and Hierarchies: Analysis and Antitrust Implications
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Williamson, O.E.1
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115
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0347544488
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note
-
One might respond to these arguments by arguing that state creation of local governments need not entail state supremacy over those governments after they are created. Even if one assumes that state governments initially ought to create local governments, one might argue that the federal government could still use such state-created localities to carry out federal programs, preempting any state laws that interfered with such federal duties. This response, however, assumes that the federal government can somehow preserve the structure of local governments while delegating duties to them that are inconsistent with state law. But a moment's consideration suggests that this is an implausible position: the jurisdictional limits on local governments are a crucial part of their structure, and federal delegation of powers to local governments would necessarily interfere with the structure of local government. For instance, a school district would be structurally a different entity altogether if its jurisdiction were enlarged to cover, say, land-use regulation: limiting school districts to educational matters was a deliberate structural decision designed to limit the role of partisan politics in school matters.
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116
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0346215350
-
The Strategic Structure of Offer and Acceptance: Game Theory and the Law of Contract Formation
-
"Transaction costs" loosely refers to the cost of striking bargains to transfer an entitlement. In the context of this article, the relevant transactions are the intergovernmental agreements whereby states and local governments agree to implement federal policy in return for federal revenue. I include in the term "transaction costs" the costs of strategic misrepresentation of beliefs, preferences, willingness to abide by an agreement, etc. See Avery Katz, The Strategic Structure of Offer and Acceptance: Game Theory and the Law of Contract Formation, 89 MICH. L. REV. 215, 225 (1990).
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(1990)
Mich. L. Rev.
, vol.89
, pp. 215
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Katz, A.1
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117
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0345992290
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By "strategic deception," I mean the withholding of information by a bargaining party in order to increase his or her share of the gains from trade at the expense of the other parties to a bargain. See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 18 (1983).
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(1983)
An Introduction to Law and Economics
, pp. 18
-
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Mitchell Polinsky, A.1
-
119
-
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84974201811
-
The Political Attitude of Senior Civil Servants in Western Europe: A Preliminary Report
-
Cf. Robert D. Putnam, The Political Attitude of Senior Civil Servants in Western Europe: A Preliminary Report, 3 BRIT. J. POL. SCI. 257, 257-60 (1973).
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(1973)
Brit. J. Pol. Sci.
, vol.3
, pp. 257
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Putnam, R.D.1
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120
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0347476585
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The Enforcement of Federal Standards in Grant-In-Aid Programs: Suggestions for Beneficiary Involvement
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See, e.g., Edward A. Tomlinson & Jerry L. Mashaw, The Enforcement of Federal Standards in Grant-In-Aid Programs: Suggestions for Beneficiary Involvement, 58 VA. L. REV. 600 (1972) (describing instances of state failure to abide by federal rules in administering -AFDC program).
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(1972)
Va. L. Rev.
, vol.58
, pp. 600
-
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Tomlinson, E.A.1
Mashaw, J.L.2
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121
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0004266826
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See JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 165-68, 175, 247-51 (1989) (explaining constraints on congressional control of "craft agencies" and "procedural agencies" where agency outputs are difficult to measure or agency activities are highly technical and therefore invisible to outsiders).
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(1989)
Bureaucracy: What Government Agencies Do and Why They Do It
, pp. 165-168
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Wilson, J.Q.1
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122
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0348174143
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note
-
So, for instance, the federal government might insist that school districts avoid the commingling of federal funds for special education with ordinary state and local education funds in order to prevent the former from being converted to purposes other than aid to the handicapped. Unfortunately, rigorous separation of such funds can undermine the purpose of educating disabled children, by placing them in classes that are physically separate from other students.
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-
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123
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0000508965
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Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies
-
Cf. Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 435-40 (1989) (explaining how, "[b]y establishing a new status quo, a noncomplying agency has broken apart the coalition that gave rise to its initial mandate" and has prevented ex post sanctions of agency misbehavior even if the legislature can perfectly monitor agency noncompliance).
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(1989)
Va. L. Rev.
, vol.75
, pp. 431
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McCubbins, M.D.1
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124
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0346913603
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note
-
See BARDACH, supra note 57, at 224 (stating that intergovernmental negotiations about the shape of cooperative programs can be impeded by parties' awareness that "they will find it difficult if not impossible to enforce the terms of any agreement they reach once resources are committed and the program is under way").
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125
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33746359474
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From Coercion to Partnership in Federal Partial Pre-emption: SMCRA, RCRA, and OSH Act
-
Fall
-
See Michael J. Scicchitano & David M. Hedge, From Coercion to Partnership in Federal Partial Pre-emption: SMCRA, RCRA, and OSH Act, PUBLIUS, Fall 1993 at 107, 114 (noting that "revoking state primacy" in the enforcement of federal regulations "is an empty threat" because "federal agencies lack the personnel" to carry out the law directly).
-
(1993)
Publius
, pp. 107
-
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Scicchitano, M.J.1
Hedge, D.M.2
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126
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0348106563
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William Janklow, governor of South Dakota between 1979 and 1987, notoriously exploited the federal government's inability to enforce its AFDC regulations against noncomplying states. As he candidly observed, "[i]t took me about four years to figure out that I could really ignore a lot of the federal rules and wouldn't have to face the sanctions. . . . Frankly, I just started ignoring all the federal rules and it made a remarkable difference in our ability to do things." MARSHALL KAPLAN & SUE O'BRIEN, THE GOVERNORS AND THE NEW FEDERALISM 47 (1991).
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(1991)
The Governors and the New Federalism
, pp. 47
-
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Kaplan, M.1
O'Brien, S.2
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127
-
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0348174142
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-
See DERTHICK, supra note 21, at 115-18
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See DERTHICK, supra note 21, at 115-18.
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-
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128
-
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0346913602
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note
-
See DERTHICK, supra note 21, at 210-11 (describing Massachusetts legislature's inability to gauge whether the Social Security Administration would actually carry out its threat to withdraw federal funds in case of state noncompliance).
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-
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129
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0039030789
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In administering the Federal Emergency Relief Act, Harry Hopkins was repeatedly confronted by governors who refused to provide state matching funds after receiving federal grants requiring a state match, knowing that Hopkins would be reluctant to cut off aid to the unemployed. See JAMES T. PATTERSON, THE NEW DEAL AND THE STATES: FEDERALISM IN TRANSITION 136-37 (describing Eugene Talmadge's refusal to appropriate state matching funds and daring federal officials to cut off federal money); CHARLES H. TROUT, BOSTON, THE GREAT DEPRESSION, AND THE NEW DEAL 158-62, 309-10 (1977) (describing Boston Democratic machine's tendency to ignore Hopkins's threats to cut off federal relief money
-
The New Deal and the States: Federalism in Transition
, pp. 136-137
-
-
Patterson, J.T.1
-
130
-
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0007182083
-
-
In administering the Federal Emergency Relief Act, Harry Hopkins was repeatedly confronted by governors who refused to provide state matching funds after receiving federal grants requiring a state match, knowing that Hopkins would be reluctant to cut off aid to the unemployed. See JAMES T. PATTERSON, THE NEW DEAL AND THE STATES: FEDERALISM IN TRANSITION 136-37 (describing Eugene Talmadge's refusal to appropriate state matching funds and daring federal officials to cut off federal money); CHARLES H. TROUT, BOSTON, THE GREAT DEPRESSION, AND THE NEW DEAL 158-62, 309-10 (1977) (describing Boston Democratic machine's tendency to ignore Hopkins's threats to cut off federal relief money if federal conditions were not obeyed). As Hopkins complained, in such federal-state conflicts, "who gets licked? The unemployed. They always get licked." PATTERSON, supra, at 72.
-
(1977)
Boston, the Great Depression, and the New Deal
, pp. 158-162
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-
Trout, C.H.1
-
131
-
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0347544482
-
-
PATTERSON, supra, at 72
-
In administering the Federal Emergency Relief Act, Harry Hopkins was repeatedly confronted by governors who refused to provide state matching funds after receiving federal grants requiring a state match, knowing that Hopkins would be reluctant to cut off aid to the unemployed. See JAMES T. PATTERSON, THE NEW DEAL AND THE STATES: FEDERALISM IN TRANSITION 136-37 (describing Eugene Talmadge's refusal to appropriate state matching funds and daring federal officials to cut off federal money); CHARLES H. TROUT, BOSTON, THE GREAT DEPRESSION, AND THE NEW DEAL 158-62, 309-10 (1977) (describing Boston Democratic machine's tendency to ignore Hopkins's threats to cut off federal relief money if federal conditions were not obeyed). As Hopkins complained, in such federal-state conflicts, "who gets licked? The unemployed. They always get licked." PATTERSON, supra, at 72.
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-
-
-
132
-
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0347544484
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note
-
See Hills, supra note 2, at 875-86. Eugene Bardach makes a similar point in BARDACH, supra note 57, at 98-100.
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-
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133
-
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0346913601
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note
-
So, for instance, Donald Haider reports that the National Governors' Association sponsored studies showing that state governments were just as capable of administering the Safe Streets program as municipalities. See HAIDER, supra note 56, at 248.
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134
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0346283464
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note
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For instance, the National Conference of Mayors eventually persuaded Congress to end governors' control of funds from the Law Enforcement Assistance Administration by insisting that governors' use of such funds be carefully monitored. See HAIDER, supra note 56, at 206-07.
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-
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135
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0347544478
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note
-
Of course, state governments might still compete with each other for federal revenue; however, because state governments do not have overlapping territorial jurisdiction, each state would have a monopoly over nonfederal governmental resources within its territory.
-
-
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136
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84974151912
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State Centralization and the Erosion of Local Autonomy
-
See G. Ross Stephens, State Centralization and the Erosion of Local Autonomy, 36 J. POL. 44 (1974); Jeffrey M. Stonecash, Paths of Fiscal Centralization in the American States, 13 POLY. STUD. J. 653 (1985).
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(1974)
J. Pol.
, vol.36
, pp. 44
-
-
Ross Stephens, G.1
-
137
-
-
84982732371
-
Paths of Fiscal Centralization in the American States
-
See G. Ross Stephens, State Centralization and the Erosion of Local Autonomy, 36 J. POL. 44 (1974); Jeffrey M. Stonecash, Paths of Fiscal Centralization in the American States, 13 POLY. STUD. J. 653 (1985).
-
(1985)
Poly. Stud. J.
, vol.13
, pp. 653
-
-
Stonecash, J.M.1
-
138
-
-
0004174448
-
-
See PAUL E. PETERSON, THE PRICE OF FEDERALISM 73-75 (1995). The history of state-local relations during the nineteenth century reflects some of these incentives. State legislatures were notorious during the nineteenth century for using "ripper" legislation to strip local governments of control over local administrative posts in order to maximize their ability to distribute jobs to political supporters. The wave of state constitutional amendments prohibiting "special legislation" or protecting "home rule" were ratified in response to this tendency. See David O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment - Part I, 1969 UTAH L. REV. 287, 299-306. More recently, state governments have exhibited a tendency to impose mandates on local governments that seem to confirm Peterson's analysis of state political incentives. See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, REPORT M-173, MANDATES: CASES IN STATE-LOCAL RELATIONS 14 (1990); CONLAN, supra note 74, 259-60.
-
(1995)
The Price of Federalism
, pp. 73-75
-
-
Peterson, P.E.1
-
139
-
-
0348106561
-
The Ripper Clause in State Constitutional Law: An Early Urban Experiment - Part I
-
See PAUL E. PETERSON, THE PRICE OF FEDERALISM 73-75 (1995). The history of state-local relations during the nineteenth century reflects some of these incentives. State legislatures were notorious during the nineteenth century for using "ripper" legislation to strip local governments of control over local administrative posts in order to maximize their ability to distribute jobs to political supporters. The wave of state constitutional amendments prohibiting "special legislation" or protecting "home rule" were ratified in response to this tendency. See David O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment - Part I, 1969 UTAH L. REV. 287, 299-306. More recently, state governments have exhibited a tendency to impose mandates on local governments that seem to confirm Peterson's analysis of state political incentives. See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, REPORT M-173, MANDATES: CASES IN STATE-LOCAL RELATIONS 14 (1990); CONLAN, supra note 74, 259-60.
-
Utah L. Rev.
, vol.1969
, pp. 287
-
-
Porter, D.O.1
-
140
-
-
0348106557
-
-
See PAUL E. PETERSON, THE PRICE OF FEDERALISM 73-75 (1995). The history of state-local relations during the nineteenth century reflects some of these incentives. State legislatures were notorious during the nineteenth century for using "ripper" legislation to strip local governments of control over local administrative posts in order to maximize their ability to distribute jobs to political supporters. The wave of state constitutional amendments prohibiting "special legislation" or protecting "home rule" were ratified in response to this tendency. See David O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment - Part I, 1969 UTAH L. REV. 287, 299-306. More recently, state governments have exhibited a tendency to impose mandates on local governments that seem to confirm Peterson's analysis of state political incentives. See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, REPORT M-173, MANDATES: CASES IN STATE-LOCAL RELATIONS 14 (1990); CONLAN, supra note 74, 259-60.
-
(1990)
Advisory Commn. on Intergovernmental Relations, Report M-173, Mandates: Cases in State-Local Relations
, pp. 14
-
-
-
141
-
-
0348174043
-
-
CONLAN, supra note 74, 259-60
-
See PAUL E. PETERSON, THE PRICE OF FEDERALISM 73-75 (1995). The history of state-local relations during the nineteenth century reflects some of these incentives. State legislatures were notorious during the nineteenth century for using "ripper" legislation to strip local governments of control over local administrative posts in order to maximize their ability to distribute jobs to political supporters. The wave of state constitutional amendments prohibiting "special legislation" or protecting "home rule" were ratified in response to this tendency. See David O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment - Part I, 1969 UTAH L. REV. 287, 299-306. More recently, state governments have exhibited a tendency to impose mandates on local governments that seem to confirm Peterson's analysis of state political incentives. See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, REPORT M-173, MANDATES: CASES IN STATE-LOCAL RELATIONS 14 (1990); CONLAN, supra note 74, 259-60.
-
-
-
-
142
-
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0346283389
-
-
WRIGHT, supra note 12, at 319
-
WRIGHT, supra note 12, at 319.
-
-
-
-
143
-
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0346283391
-
-
note
-
The evidence from state administration of the Small Cities Block grant program suggests that state governments would "re-categorize" federal monies to be passed through to localities by attaching elaborate state-law conditions to such funds. See RICH, supra note 59, at 119.
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-
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144
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84935999062
-
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Of course, voters may well feel irked by the inefficient delivery of governmental services. But it is hardly self-evident that voters will blame Congress for such inefficiencies. It is at least as likely that voters will simply blame the bureaucrats themselves for inefficiencies in service delivery, without asking how the overall structure of the agency set up by Congress contributes to the agency's shortcomings. Indeed, it has even been suggested that individual members of Congress can profit electorally from the ineptitude of governmental agencies: when bureaucrats bungle in service delivery, then incumbent congresspersons can win their constituents' gratitude by performing casework for constituents who are aggrieved by bureaucratic decisionmaking. See BRUCE CAIN ET AL., THE PERSONAL VOTE: CONSTITUENCY SERVICE AND ELECTORAL INDEPENDENCE 205-06 (1987).
-
(1987)
The Personal Vote: Constituency Service and Electoral Independence
, pp. 205-206
-
-
Cain, B.1
-
145
-
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0346913529
-
-
469 U.S. 256 (1985)
-
469 U.S. 256 (1985).
-
-
-
-
146
-
-
0346283462
-
-
See Lawrence County, 469 U.S. at 258-59
-
See Lawrence County, 469 U.S. at 258-59.
-
-
-
-
147
-
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0348174046
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-
See Lawrence County, 469 U.S. at 260
-
See Lawrence County, 469 U.S. at 260.
-
-
-
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148
-
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0348174045
-
-
See Lawrence County, 469 U.S. at 261-68
-
See Lawrence County, 469 U.S. at 261-68.
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-
-
-
149
-
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0347544479
-
-
See Lawrence County, 469 U.S. at 256, 270-71
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See Lawrence County, 469 U.S. at 256, 270-71.
-
-
-
-
150
-
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0346913528
-
-
Lawrence County, 469 U.S. at 272
-
Lawrence County, 469 U.S. at 272.
-
-
-
-
151
-
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0346913527
-
-
Briffault, supra note 37, at 361
-
Unlike municipalities and like cities, counties cannot annex land from neighboring local governments. See Briffault, supra note 37, at 361. Moreover, local governments generally do not obtain the power to define and provide for the punishment of felonies as a result of "home rule" powers, e.g., COMM. ON HOME RULE OF THE AMERICAN MUNICIPAL ASSN., MODEL CONSTL. PROVISIONS FOR MUNICIPAL HOME RULE § 6 (1953); NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONST. § 8.02 (rev. ed. 1968).
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-
-
-
152
-
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0346283456
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-
§ 6
-
Unlike municipalities and like cities, counties cannot annex land from neighboring local governments. See Briffault, supra note 37, at 361. Moreover, local governments generally do not obtain the power to define and provide for the punishment of felonies as a result of "home rule" powers, e.g., COMM. ON HOME RULE OF THE AMERICAN MUNICIPAL ASSN., MODEL CONSTL. PROVISIONS FOR MUNICIPAL HOME RULE § 6 (1953); NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONST. § 8.02 (rev. ed. 1968).
-
(1953)
Comm. on Home Rule of the American Municipal Assn., Model Constl. Provisions for Municipal Home Rule
-
-
-
153
-
-
0347544383
-
-
§ 8.02 rev. ed.
-
Unlike municipalities and like cities, counties cannot annex land from neighboring local governments. See Briffault, supra note 37, at 361. Moreover, local governments generally do not obtain the power to define and provide for the punishment of felonies as a result of "home rule" powers, e.g., COMM. ON HOME RULE OF THE AMERICAN MUNICIPAL ASSN., MODEL CONSTL. PROVISIONS FOR MUNICIPAL HOME RULE § 6 (1953); NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONST. § 8.02 (rev. ed. 1968).
-
(1968)
National Municipal League, Model State Const.
-
-
-
154
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0346913596
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-
Lawrence County, 469 U.S. at 269-70
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Lawrence County, 469 U.S. at 269-70.
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-
-
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155
-
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0346283390
-
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Lawrence County, 469 U.S. at 270
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Lawrence County, 469 U.S. at 270.
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-
-
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156
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0348174048
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note
-
See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1. 17 (1981) ("The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.") (citations omitted); see also Oklahoma v. Civil Serv. Commn., 330 U.S. 127, 143-44 (1947); Steward Machine Co. v. Davis, 301 U.S. 548, 589-90 (1937); Massachusetts v. Mellon, 262 U.S. 447, 482-83 (1923).
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-
-
-
157
-
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21844521004
-
The Spending Power
-
See David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 74-76 (1994) (criticizing Lawrence County as implicitly assuming that Congress can use grants to enlarge powers of local government).
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(1994)
Duke L.J.
, vol.44
, pp. 1
-
-
Engdahl, D.E.1
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158
-
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0346913598
-
-
See id
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See id.
-
-
-
-
159
-
-
0348174135
-
-
See supra note 112
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See supra note 112.
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-
-
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160
-
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0347544467
-
-
See Carlsbad Union Sch. Dist. v. Rafferty, 300 F. Supp. 434 (S.D. Cal. 1969); Hergenreter v. Hayden, 295 F. Supp. 251 (D. Kan. 1968); Triplett v. Tiemann, 302 F. Supp. 1244 (D. Neb. 1969); Douglas Indep. Sch. Dist. v. Jorgenson, 293 F. Supp. 849 (D. S.D. 1968); Shepheard v. Godwin, 280 F. Supp. 869 (E.D. Va. 1968)
-
See Carlsbad Union Sch. Dist. v. Rafferty, 300 F. Supp. 434 (S.D. Cal. 1969); Hergenreter v. Hayden, 295 F. Supp. 251 (D. Kan. 1968); Triplett v. Tiemann, 302 F. Supp. 1244 (D. Neb. 1969); Douglas Indep. Sch. Dist. v. Jorgenson, 293 F. Supp. 849 (D. S.D. 1968); Shepheard v. Godwin, 280 F. Supp. 869 (E.D. Va. 1968).
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-
-
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161
-
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0348174132
-
-
S.D. CODIFIED LAWS § 5-11-6 (Michie 1993 & Supp. 1998)
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S.D. CODIFIED LAWS § 5-11-6 (Michie 1993 & Supp. 1998).
-
-
-
-
162
-
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0346913597
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note
-
I explain the reason for limiting the presumption to constitutionally recognized local governments at infra notes 123-25 and accompanying text.
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-
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163
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0348174134
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note
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See S.D. CONST. art. IX, § 2 (authorizing counties to adopt home-rule charters). The constitutional recognition need not involve immunity from legislative action: it is sufficient that the state constitution simply create the institution and bestow powers on it that, absent state legislative action, can be exercised to initiate policies.
-
-
-
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164
-
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0004176479
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-
See, e.g., THOMAS J. ANTON, AMERICAN FEDERALISM AND PUBLIC POLICY: HOW THE SYSTEM WORKS 68-70 (1989) (describing how federal grants create local capacity for local governments to participate in intergovernmental system by improving their ability and incentive to apply for further federal aid); DERTHICK, supra note 21, at 56-58 (describing how a federal social security old-age program stimulated the creation of a lobby in Massachusetts to expand the program). For a recent example of this tendency, see Stephen Glass, Anatomy of a Policy Fraud: The Hollow Crime Bill, THE NEW REPUBLIC, Nov. 17, 1997, at 22, 23-24 (describing how federal grants for extra police gives municipalities an incentive to hire lobbyists to extend life of program). The multiplication of intergovernmental lobbies with an interest in federal programs need not increase the total amount of intergovernmental aid. To the contrary, by dividing aid among several levels of nonfederal governments, Congress can encourage nonfederal governments to lobby against the other nonfederal institutions' access to aid. For instance, municipalities' efforts to redirect federal revenue sharing from state governments to themselves led them to be sharply critical of state management of such aid - criticism which led to the termination of such aid for all nonfederal governments. See Stephen Farber, Federalism and State-Local Relations, in A DECADE OF DEVOLUTION: PERSPECTIVES ON STATE-LOCAL RELATIONS, supra note 64, at 27, 39-40.
-
(1989)
American Federalism and Public Policy: How the System Works
, pp. 68-70
-
-
Anton, T.J.1
-
165
-
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0347544469
-
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DERTHICK, supra note 21, at 56-58
-
See, e.g., THOMAS J. ANTON, AMERICAN FEDERALISM AND PUBLIC POLICY: HOW THE SYSTEM WORKS 68-70 (1989) (describing how federal grants create local capacity for local governments to participate in intergovernmental system by improving their ability and incentive to apply for further federal aid); DERTHICK, supra note 21, at 56-58 (describing how a federal social security old-age program stimulated the creation of a lobby in Massachusetts to expand the program). For a recent example of this tendency, see Stephen Glass, Anatomy of a Policy Fraud: The Hollow Crime Bill, THE NEW REPUBLIC, Nov. 17, 1997, at 22, 23-24 (describing how federal grants for extra police gives municipalities an incentive to hire lobbyists to extend life of program). The multiplication of intergovernmental lobbies with an interest in federal programs need not increase the total amount of intergovernmental aid. To the contrary, by dividing aid among several levels of nonfederal governments, Congress can encourage nonfederal governments to lobby against the other nonfederal institutions' access to aid. For instance, municipalities' efforts to redirect federal revenue sharing from state governments to themselves led them to be sharply critical of state management of such aid - criticism which led to the termination of such aid for all nonfederal governments. See Stephen Farber, Federalism and State-Local Relations, in A DECADE OF DEVOLUTION: PERSPECTIVES ON STATE-LOCAL RELATIONS, supra note 64, at 27, 39-40.
-
-
-
-
166
-
-
0002495558
-
Anatomy of a Policy Fraud: The Hollow Crime Bill
-
Nov. 17
-
See, e.g., THOMAS J. ANTON, AMERICAN FEDERALISM AND PUBLIC POLICY: HOW THE SYSTEM WORKS 68-70 (1989) (describing how federal grants create local capacity for local governments to participate in intergovernmental system by improving their ability and incentive to apply for further federal aid); DERTHICK, supra note 21, at 56-58 (describing how a federal social security old-age program stimulated the creation of a lobby in Massachusetts to expand the program). For a recent example of this tendency, see Stephen Glass, Anatomy of a Policy Fraud: The Hollow Crime Bill, THE NEW REPUBLIC, Nov. 17, 1997, at 22, 23-24 (describing how federal grants for extra police gives municipalities an incentive to hire lobbyists to extend life of program). The multiplication of intergovernmental lobbies with an interest in federal programs need not increase the total amount of intergovernmental aid. To the contrary, by dividing aid among several levels of nonfederal governments, Congress can encourage nonfederal governments to lobby against the other nonfederal institutions' access to aid. For instance, municipalities' efforts to redirect federal revenue sharing from state governments to themselves led them to be sharply critical of state management of such aid -criticism which led to the termination of such aid for all nonfederal governments. See Stephen Farber, Federalism and State-Local Relations, in A DECADE OF DEVOLUTION: PERSPECTIVES ON STATE-LOCAL RELATIONS, supra note 64, at 27, 39-40.
-
(1997)
The New Republic
, pp. 22
-
-
Glass, S.1
-
167
-
-
84906141612
-
Federalism and State-Local Relations
-
supra note 64, at 27, 39-40
-
See, e.g., THOMAS J. ANTON, AMERICAN FEDERALISM AND PUBLIC POLICY: HOW THE SYSTEM WORKS 68-70 (1989) (describing how federal grants create local capacity for local governments to participate in intergovernmental system by improving their ability and incentive to apply for further federal aid); DERTHICK, supra note 21, at 56-58 (describing how a federal social security old-age program stimulated the creation of a lobby in Massachusetts to expand the program). For a recent example of this tendency, see Stephen Glass, Anatomy of a Policy Fraud: The Hollow Crime Bill, THE NEW REPUBLIC, Nov. 17, 1997, at 22, 23-24 (describing how federal grants for extra police gives municipalities an incentive to hire lobbyists to extend life of program). The multiplication of intergovernmental lobbies with an interest in federal programs need not increase the total amount of intergovernmental aid. To the contrary, by dividing aid among several levels of nonfederal governments, Congress can encourage nonfederal governments to lobby against the other nonfederal institutions' access to aid. For instance, municipalities' efforts to redirect federal revenue sharing from state governments to themselves led them to be sharply critical of state management of such aid - criticism which led to the termination of such aid for all nonfederal governments. See Stephen Farber, Federalism and State-Local Relations, in A DECADE OF DEVOLUTION: PERSPECTIVES ON STATE-LOCAL RELATIONS, supra note 64, at 27, 39-40.
-
A Decade of Devolution: Perspectives on State-Local Relations
-
-
Farber, S.1
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168
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0348106540
-
-
See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, REPORT A-54, THE INTERGOVERNMENTAL GRANT SYSTEM AS SEEN BY LOCAL, STATE, AND FEDERAL OFFICIALS 113 (1977) (noting that "the greater the agency's Federal aid dependency, the more contacts exist [between the state and federal agency]").
-
(1977)
Advisory Commn. on Intergovernmental Relations, Report A-54, the Intergovernmental Grant System as Seen by Local, State, and Federal Officials
, pp. 113
-
-
-
169
-
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0346845971
-
-
See MICHAEL I. GELFAND, THE NEW DEAL AND THE CITIES 23-70 (1975) (describing the founding of the National Conference of Mayors during the 1930s).
-
(1975)
The New Deal and the Cities
, pp. 23-70
-
-
Gelfand, M.I.1
-
170
-
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0347476569
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-
Dec 6
-
For examples of this worry, see ASSEMBLY WAYS & MEANS COMM., NEW YORK STATE LEGISLATURE, APPROPRIATING FEDERAL FUNDS: A PROPOSAL FOR NEW YORK STATE (Dec 6, 1976), reprinted in Role of State Legislatures in Appropriating Fed. Funds to States, Hearing Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Govtl. Affairs, 95th Cong. 9-11 (1977) [hereinafter Hearings](describing instances in which highly specialized state agencies will liberate themselves from comprehensive budgeting through grant applications).
-
(1976)
Assembly Ways & Means Comm., New York State Legislature, Appropriating Federal Funds: A Proposal for New York State
-
-
-
172
-
-
0004104007
-
-
4th ed.
-
For defenses of comprehensive budgeting as a way to promote express consideration of the relative merits of old and new programs, see AARON WILDAVSKY, THE POLITICS OF THE BUDGETARY PROCESS 136-37 (4th ed. 1984). For an example of a state law promoting comprehensive budgeting, see ALA. CODE §§ 41-19-1 to 41-19-12 (Michie Supp. 1994) (Alabama Budget Management Act). At the federal level, comprehensive budgeting has been promoted by various statutes and legislative rules. For a review of these mechanisms, see Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 593 (1988).
-
(1984)
The Politics of the Budgetary Process
, pp. 136-137
-
-
Wildavsky, A.1
-
173
-
-
0348174047
-
-
ALA. CODE §§ 41-19-1 to 41-19-12 Michie
-
For defenses of comprehensive budgeting as a way to promote express consideration of the relative merits of old and new programs, see AARON WILDAVSKY, THE POLITICS OF THE BUDGETARY PROCESS 136-37 (4th ed. 1984). For an example of a state law promoting comprehensive budgeting, see ALA. CODE §§ 41-19-1 to 41-19-12 (Michie Supp. 1994) (Alabama Budget Management Act). At the federal level, comprehensive budgeting has been promoted by various statutes and legislative rules. For a review of these mechanisms, see Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 593 (1988).
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(1994)
Alabama Budget Management Act
, Issue.SUPPL.
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-
-
174
-
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0042088349
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Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings
-
For defenses of comprehensive budgeting as a way to promote express consideration of the relative merits of old and new programs, see AARON WILDAVSKY, THE POLITICS OF THE BUDGETARY PROCESS 136-37 (4th ed. 1984). For an example of a state law promoting comprehensive budgeting, see ALA. CODE §§ 41-19-1 to 41-19-12 (Michie Supp. 1994) (Alabama Budget Management Act). At the federal level, comprehensive budgeting has been promoted by various statutes and legislative rules. For a review of these mechanisms, see Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 593 (1988).
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(1988)
Cal. L. Rev.
, vol.76
, pp. 593
-
-
Stith, K.1
-
175
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0346913533
-
-
note
-
The number of executive offices created by the state constitution will tend to vary with the age of the constitution and political culture of the state. State constitutions that are older or derive from what Elazar calls "traditionalistic" or "individualistic" political cultures will tend to have numerous independent and elected state executive officials, reflecting populist distrust of executive power. See, e.g., ALA. CONST. § 112-114 (creating eight elected state-wide executive offices); ARK. CONST. art. VI, § 1 (creating seven elected state-wide offices). By contrast, constitutions that have been recently updated, especially in "moralistic" political cultures that are more trustful of vigorous governmental action, tend to create a unified executive branch with power concentrated in a single elected governor assisted by a lieutenant governor. See, e.g., HAW. CONST. art. V, §§ 1-6. On the definition of political cultures among the states, see ELAZAR, supra note 65, at 112-31.
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-
-
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176
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0346913592
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-
See GELFAND, supra note 122
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See GELFAND, supra note 122.
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-
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177
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34248687992
-
Community Development Block Grant: The Role of Federal Requirements
-
Summer
-
See Catherine Lovell, Community Development Block Grant: The Role of Federal Requirements, PUBLIUS, Summer 1983, at 85.
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(1983)
Publius
, pp. 85
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Lovell, C.1
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178
-
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0348174055
-
-
note
-
The controversy is most famously illustrated by the struggle between the governors and mayors during the 1970s for control over block grants and revenue sharing funds. For a summary of this controversy, see CONLAN, supra note 12, at 59; HAIDER, supra note 56, at 77-117; Farber, supra note 120, at 27-49.
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-
-
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179
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84954725817
-
-
supra note 123, at 63
-
Hearings, supra note 123, at 63. The tendency for Democrats to distrust state governments and favor cities continued into the Reagan administration. See REAGAN AND THE CITIES (George E. Peterson & Carol W. Lewis eds., 1986).
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Hearings
-
-
-
180
-
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0004124345
-
-
Hearings, supra note 123, at 63. The tendency for Democrats to distrust state governments and favor cities continued into the Reagan administration. See REAGAN AND THE CITIES (George E. Peterson & Carol W. Lewis eds., 1986).
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(1986)
Reagan and the Cities
-
-
Peterson, G.E.1
Lewis, C.W.2
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181
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0346913537
-
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417 U.S. 402 (1974)
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417 U.S. 402 (1974).
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-
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-
182
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0346283459
-
-
See Wheeler, 417 U.S. at 425
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See Wheeler, 417 U.S. at 425.
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-
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183
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0348106521
-
The Function and Nature of Grants
-
This is not to say that courts should never enjoin state laws inconsistent with federal grant conditions. If the state government itself, through statute enacted by the state legislature, has expressly acceded to such conditions, then it might be perfectly appropriate to enjoin state laws inconsistent with the terms under which federal money has been awarded to the state government. In King v. Smith, 392 U.S. 309 (1968), for instance, the Court enforced federal grant conditions governing Aid to Families with Dependent Children (AFDC) by simply enjoining Alabama's "substitute father" rule limiting eligibility for AFDC assistance. In King, the Alabama legislature had already assented to participate in the AFDC program by submitting a plan to the Department of Health, Education, and Welfare (HEW) and accepting federal revenue even after the HEW had promulgated the "Flemming Ruling" outlawing the ℧substitute father℧ regulation. In effect, the Court simply enforced the "contract" between Alabama and the federal government with the remedy of specific performance. See Allanson S. Willcox, The Function and Nature of Grants, 22 ADMIN. L. REV. 125, 133 (1969).
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(1969)
Admin. L. Rev.
, vol.22
, pp. 125
-
-
Willcox, A.S.1
-
184
-
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0346913595
-
-
447 F.2d 972 (2d Cir. 1971)
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447 F.2d 972 (2d Cir. 1971).
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-
-
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185
-
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0348174050
-
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See New Haven, 447 F.2d at 973
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See New Haven, 447 F.2d at 973.
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186
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0348174056
-
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See New Haven, 447 F.2d at 973-74
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See New Haven, 447 F.2d at 973-74.
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187
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0346845961
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State governments were acutely aware of the danger that municipal airports might impose spillover effects on nonresidents. During the 1945 hearings on the Civil Aeronautics Act, the Council of State Governments urged that federal money for airports be channelled through the states to ensure that an impartial level of government would arbitrate such disputes. See ROSCOE C. MARTIN, THE CITIES AND THE FEDERAL SYSTEM 95 (1965).
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(1965)
The Cities and the Federal System
, pp. 95
-
-
Martin, R.C.1
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188
-
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0346913519
-
-
See Indian Oasis-Baboquivari Unified Sch. Dist. No. 40 v. Kirk, 91 F.3d 1240, 1242 (9th Cir. 1996); City of East St. Louis v. Circuit Court. 986 F.2d 1142, 1144 (7th Cir. 1993); Village of Arlington Heights v. Regional Transp. Auth., 653 F.2d 1149, 1152 (7th Cir. 1981) (holding that the municipality lacks standing to challenge state law under Fourteenth Amendment)
-
See Indian Oasis-Baboquivari Unified Sch. Dist. No. 40 v. Kirk, 91 F.3d 1240, 1242 (9th Cir. 1996); City of East St. Louis v. Circuit Court. 986 F.2d 1142, 1144 (7th Cir. 1993); Village of Arlington Heights v. Regional Transp. Auth., 653 F.2d 1149, 1152 (7th Cir. 1981) (holding that the municipality lacks standing to challenge state law under Fourteenth Amendment).
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-
-
-
189
-
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0346913536
-
-
501 U.S. 452 (1991)
-
501 U.S. 452 (1991).
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-
-
-
190
-
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0348174054
-
-
See Gregory, 501 U.S. at 470
-
See Gregory, 501 U.S. at 470.
-
-
-
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191
-
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37949055808
-
Variations on a Theory of Normative Federalism: A Supreme Court Dialogue
-
For a defense of this sort of reasoning, see Ann Althouse, Variations on a Theory of Normative Federalism: A Supreme Court Dialogue, 42 DUKE L.J. 979, 1006-07 (1993). For a less sanguine opinion about Gregory, see William N. Eskridge, Jr. & Philip P. Frickey, Quasi- Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 629-45 (1992).
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(1993)
Duke L.J.
, vol.42
, pp. 979
-
-
Althouse, A.1
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192
-
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0041731271
-
Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking
-
For a defense of this sort of reasoning, see Ann Althouse, Variations on a Theory of Normative Federalism: A Supreme Court Dialogue, 42 DUKE L.J. 979, 1006-07 (1993). For a less sanguine opinion about Gregory, see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 629-45 (1992).
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(1992)
Vand. L. Rev.
, vol.45
, pp. 593
-
-
Eskridge W.N., Jr.1
Frickey, P.P.2
-
193
-
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0346913539
-
-
For a helpful discussion of the relationship between "substantive" constitutional limits and "procedural" requirements that legislative bodies make findings or otherwise deliberate about constitutional matters, see Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. RES. L. REV. 695 (1996).
-
The Fool on the Hill: Congressional Findings, Constitutional Adjudication
-
-
Frickey, P.P.1
-
194
-
-
0041638205
-
-
United States v. Lopez
-
For a helpful discussion of the relationship between "substantive" constitutional limits and "procedural" requirements that legislative bodies make findings or otherwise deliberate about constitutional matters, see Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. RES. L. REV. 695 (1996).
-
(1996)
Case W. Res. L. Rev.
, vol.46
, pp. 695
-
-
-
195
-
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0004029655
-
-
Local offcials' support for intergovernmental transfers is frequently critical for inducing Congress to enact such measures. See, e.g., TIMOTHY CONLAN, FROM NEW FEDERALISM TO DEVOLUTION: TWENTY-FIVE YEARS OF INTERGOVERNMENTAL REFORM 67-68, 222 (1998) (describing importance of Mayors' lobbying efforts for enacting General Revenue Sharing and defeating Clinton's block grant proposals).
-
(1998)
From New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform
, pp. 67-68
-
-
Conlan, T.1
-
196
-
-
0346845954
-
State Legislatures and Federal Funds: An Issue of the 1980s
-
Summer
-
There have been several instances in which state legislatures have decided to eliminate legislative preclearance for grant applications simply because such preclearance presented too great an administrative headache for the legislature. See Carol S. Weissert, State Legislatures and Federal Funds: An Issue of the 1980s, PUBLIUS, Summer 1981, at 67, 72-73.
-
(1981)
Publius
, pp. 67
-
-
Weissert, C.S.1
-
197
-
-
0348174058
-
-
317 U.S. 341 (1943)
-
317 U.S. 341 (1943).
-
-
-
-
198
-
-
0347544350
-
-
See City of Columbia Adver., Inc. v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991); Fisher v. City of Berkeley, 475 U.S. 260 (1986), rehg. denied, 475 U.S. 1150 (1986); Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985); Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978) (plurality).
-
See City of Columbia Adver., Inc. v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991); Fisher v. City of Berkeley, 475 U.S. 260 (1986), rehg. denied, 475 U.S. 1150 (1986); Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985); Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978) (plurality).
-
-
-
-
199
-
-
0348174059
-
-
See City of Lafayette, 435 U.S. at 413; see also City of Boulder, 455 U.S. at 52
-
See City of Lafayette, 435 U.S. at 413; see also City of Boulder, 455 U.S. at 52.
-
-
-
-
200
-
-
0348174061
-
-
499 U.S. at 372
-
Admittedly, recent opinions make clear that the state legislature's "plain statement" need not be all that plain. For instance, the Court has held that the state has articulated local governments' exclusion of competition against existing billboard owners when the state legislature simply enacts a zoning enabling act authorizing the regulation of land uses such as billboards. See Omni Outdoor Adver., 499 U.S. at 372.
-
Omni Outdoor Adver.
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-
-
201
-
-
0346913543
-
-
note
-
See City of Boulder, 455 U.S. at 52-55 (holding that authorization in state constitution's home rule provision was insufficiently precise to bestow Parker immunity on city).
-
-
-
-
202
-
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0347544460
-
-
City of Lafayette, 435 U.S. at 403
-
City of Lafayette, 435 U.S. at 403.
-
-
-
-
203
-
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0348174063
-
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City of Lafayette, 435 U.S. at 404
-
City of Lafayette, 435 U.S. at 404.
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-
-
-
204
-
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0348174123
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City of Lafayette, 435 U.S. at 408
-
City of Lafayette, 435 U.S. at 408.
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-
-
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205
-
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0348174126
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note
-
For instance, the grant programs of Johnson's creative federalism strongly encouraged such control of federal funds by state agency "specialists" with "single-agency" requirements, thus requiring federal grants to be controlled by an agency specializing in the delivery of the particular service that Congress wished to encourage. See WRIGHT, supra note 12, at 83-86.
-
-
-
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206
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note
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See CONLAN, supra note 74, at 67 (describing "lingering suspicions and bitterness " that afflicted relations between governors and mayors).
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-
-
-
207
-
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0347544463
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See WRIGHT, supra note 12, at 276
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See WRIGHT, supra note 12, at 276.
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-
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208
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0346913593
-
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
-
-
-
209
-
-
0348106515
-
Federal Funds and National Supremacy: The Role of State Legislatures in Federal Grant Programs
-
These decisions' reasoning tended to be ambiguous as to the precise source of the limit on state legislative power: they reasoned that such appropriation was barred by state constitutional "separation of powers," because the grants came impressed with a federal purpose that the executive branch was charged with executing. Such a "separation of powers" argument, however, seemed to collapse into an argument about the federal conditions attached to the federal grant by Congress: in effect, the state courts seemed to argue that Congress intended the revenue to be controlled exclusively by governors. For a summary of such arguments, see George D. Brown, Federal Funds and National Supremacy: The Role of State Legislatures in Federal Grant Programs, 28 AM. U. L. REV. 279, 285-87 (1979).
-
(1979)
Am. U. L. Rev.
, vol.28
, pp. 279
-
-
Brown, G.D.1
-
211
-
-
0348174057
-
-
See Shapp v. Sloan, 391 A.2d 595 (Pa. 1978)
-
See Shapp v. Sloan, 391 A.2d 595 (Pa. 1978).
-
-
-
-
212
-
-
0004282880
-
-
Pub. L. No. 104-193 § 901, 110 Stat. 2105, 2347 quoted in 42 U.S.C. § 601 app.
-
The state legislatures' most salient victory occurred in 1995, when, at the urging of the National Conference of State Legislatures, U.S. Senator Hank Brown successfully sponsored the "Brown Amendment" to the Temporary Assistance for Needy Families (TANF) block grant program, a provision providing that state legislatures could appropriate federal block grant revenue for temporary assistance or for child care. The Brown Amendment provided that "[a]ny funds received by a State under the provisions of law specified in [TANF] shall be subject to appropriation by the State legislature, consistent with the terms and conditions required under such provisions of [TANF]." See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193 § 901, 110 Stat. 2105, 2347 (1996), quoted in 42 U.S.C. § 601 app. (1998). This provision did not conclusively resolve all of the ambiguity concerning state legislative control even in the narrow context of the TANF program: at most, it declared that state legislatures could "appropriate" TANF funds, without specifying how much or what sort of appropriation was "consistent with the terms and conditions of [TANF]."
-
(1996)
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
-
-
-
213
-
-
0348174119
-
-
Five state legislatures - Arizona, Colorado, Connecticut, Delaware, and New Mexico - still do not appropriate federal grant revenue at all but rather allow the governor or executive agency to apply for federal grants and spend it free from direct legislative oversight. An additional seven states - Alabama, Idaho, Indiana, Iowa, North Carolina, West Virginia, and Wisconsin - provide only open-ended authorizations for executive agencies to spend federal funds: these states place no cap on the federal grant revenue that an agency can expend, and they do not appropriate federal grant revenue to specific subprograms administered by the grant-obtaining agency. Minnesota sometimes appropriates specific amounts of federal grant revenue for specified federal programs. Minnesota, however, provides an "open and standing" authorization for state agencies to expend federal funds. Texas and Utah allow the expenditure of unanticipated federal funds. See LEGISLATIVE FINANCE PAPER No. 98: LEGISLATIVE OVERSIGHT OF FEDERAL FUNDS 6-7, 9 (1995) (written by Arturo Perez for the National Conference of State Legislatures).
-
(1995)
Legislative Finance Paper No. 98: Legislative Oversight of Federal Funds
, vol.98
, pp. 6-7
-
-
-
214
-
-
0348174049
-
-
Five state legislatures - Arizona, Colorado, Connecticut, Delaware, and New Mexico - still do not appropriate federal grant revenue at all but rather allow the governor or executive agency to apply for federal grants and spend it free from direct legislative oversight. An additional seven states - Alabama, Idaho, Indiana, Iowa, North Carolina, West Virginia, and Wisconsin - provide only open-ended authorizations for executive agencies to spend federal funds: these states place no cap on the federal grant revenue that an agency can expend, and they do not appropriate federal grant revenue to specific subprograms administered by the grant-obtaining agency. Minnesota sometimes appropriates specific amounts of federal grant revenue for specified federal programs. Minnesota, however, provides an "open and standing" authorization for state agencies to expend federal funds. Texas and Utah allow the expenditure of unanticipated federal funds. See LEGISLATIVE FINANCE PAPER No. 98: LEGISLATIVE OVERSIGHT OF FEDERAL FUNDS 6-7, 9 (1995) (written by Arturo Perez for the National Conference of State Legislatures).
-
National Conference of State Legislatures
-
-
Perez, A.1
-
215
-
-
84903010253
-
-
supra note 123, at 79-85 (statement of the U.S. Advisory Commn. on Intergovernmental Relations)
-
See Hearings, supra note 123, at 79-85 (statement of the U.S. Advisory Commn. on Intergovernmental Relations).
-
Hearings
-
-
-
216
-
-
0346215320
-
-
supra note 123, at 9-12
-
See, e.g., ASSEMBLY WAYS & MEANS COMM., supra note 123, at 9-12. This state report describes instances in which the state legislature terminated state funding for various agency activities -travel expenses for state university researchers, high school instructional projects, psychiatric treatment for youth, etc. - only to have the agencies make up the shortfall with federal grant revenue.
-
Assembly Ways & Means Comm.
-
-
-
217
-
-
84954725817
-
-
supra note 123, at 22-26
-
See Hearings, supra note 123, at 22-26 (noting that "employees, local organizations, recipients of services" funded by federal matching grants form a "constituency" that lobbies against discontinuing the program).
-
Hearings
-
-
-
218
-
-
84954725817
-
-
supra note 123, at 98-111
-
ACIR recommended a model state bill and model state constitutional amendment, requiring that the state legislature appropriate federal grant funds to specific subprograms and prohibit agencies from expending grant funds above these appropriated amounts without legislative approval. See Hearings, supra note 123, at 98-111. The state legislatures concurred with these recommendations - but they also argued that federal statutes be amended to include state legislatures as the co-recipient of federal grant revenues so that courts would not construe federal grant programs to give governors exclusive control over federal funds. See id. at 59 (statement of Representative James Ritter, Chair, Federal-State Relations Comm., Pa. House of Representatives).
-
Hearings
-
-
-
219
-
-
0346215319
-
-
supra note 121, at 96-100
-
See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, supra note 121, at 96-100 (cataloguing the ways in which state budget officers and governors review executive agencies' grant applications). ACIR's survey showed that, out of 34 state budget officers responding to the survey, 13 precleared all grant applications, while 20 precleared some grant applications of subordinate state agencies. Typically, state governments do not preclear the grant applications of the state's public universities.
-
Advisory Commn. on Intergovernmental Relations
-
-
-
220
-
-
0346913526
-
-
Pub. L. No. 104-193, §103.A.407(b)(5), 110 Stat. 2105, 2131 (1996)
-
Pub. L. No. 104-193, §103.A.407(b)(5), 110 Stat. 2105, 2131 (1996).
-
-
-
-
221
-
-
0347544396
-
-
note
-
This precise controversy occurred in Colorado when Governor Roy Romer sought the exemption for mothers with infants, over the objections of key legislators in the State Assembly. Eventually, the governor backed down and withdrew the application of the exemption.
-
-
-
-
222
-
-
0346913544
-
-
note
-
I discuss the ambiguities of the TANF legislation at infra notes 169-172.
-
-
-
-
223
-
-
0346283403
-
-
note
-
This technique has been used primarily with federal assistance dollars. Under both the AFDC and the recently enacted TANF, federal law provided states with the option of applying for "waivers" from federal requirements and seeking "exemptions" from certain otherwise applicable requirements - say, the requirement that women with children under the age of one year obtain employment. Governors and state legislatures have fought major political struggles over whether or not to apply for such relaxation of federal regulatory standards.
-
-
-
-
224
-
-
0348174069
-
-
note
-
This is how Colorado legislature controls all federal grants awarded on a matching basis. The Colorado legislature has no power to appropriate federal grants directly under the state constitution.
-
-
-
-
225
-
-
0347544403
-
-
note
-
The governor also has a greater power to veto a piece of substantive legislation than a state appropriations measure allocating federal grants. By vetoing an appropriations measure, the governor would be depriving the federal grant program's beneficiaries of federal dollars. This consequence makes gubernatorial use of such vetoes politically unpalatable. By contrast, given the default rule that governors do not require express state authorization to apply for federal grants, if the governor vetoes substantive legislation, the availability of federal (or, for that matter, state) revenue is unaffected. In the substantive context, in other words, the default rule is gubernatorial power.
-
-
-
-
226
-
-
0346913538
-
-
532 A.2d 195 Mass. General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); People v. Tremaine, 168 N.E. 817, 822 (N.Y. 1929); Tucker v. South Carolina Dept. of Highways and Pub. Transp., 424 S.E.2d 468 (S.C. 1992)
-
See, e.g., Opinion of the Justices, 532 A.2d 195 (Mass. 1987); General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); People v. Tremaine, 168 N.E. 817, 822 (N.Y. 1929); Tucker v. South Carolina Dept. of Highways and Pub. Transp., 424 S.E.2d 468 (S.C. 1992).
-
(1987)
Opinion of the Justices
-
-
-
227
-
-
0004282880
-
-
Pub. L. No. 104-193, § 901, 110 Stat. 2105, 2347 quoted in 42 U.S.C. § 601 app.
-
The recent exception to this practice has been the so-called Brown Amendment, which provides that two block grants "shall be subject to appropriation by the State legislature, consistent with the terms and conditions required under [the block grant provisions]." Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 901, 110 Stat. 2105, 2347 (1996), quoted in 42 U.S.C. § 601 app. (1998). Congress repeated similar language in 29 U.S.C. § 2941 (a) (1998), providing that block grants for job training "shall be subject to appropriation by the state legislature, consistent with the terms and conditions required under [the Workforce Investment program]."
-
(1996)
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
-
-
-
229
-
-
0347544395
-
-
Letter from Wayne G. Granquist, Associate Dir., Management & Regulatory Policy, OMB, to William J. Anderson, Director, GAO (Aug. 11, 1980), App. IV, app. IV GGD-81-3 Dec. 15
-
See Letter from Wayne G. Granquist, Associate Dir., Management & Regulatory Policy, OMB, to William J. Anderson, Director, GAO (Aug. 11, 1980), in App. IV, COMPTROLLER GENERAL, REPORT TO THE CONGRESS: FEDERAL ASSISTANCE SYSTEM SHOULD BE CHANGED TO PERMIT GREATER INVOLVEMENT BY STATE LEGISLATURES app. IV (GGD-81-3 Dec. 15, 1980).
-
(1980)
Comptroller General, Report to the Congress: Federal Assistance System Should be Changed to Permit Greater Involvement by State Legislatures
-
-
-
230
-
-
0348174068
-
-
See, e.g., Oklahoma v. Civil Serv. Commn., 330 U.S. 127, 143 (1947)
-
See, e.g., Oklahoma v. Civil Serv. Commn., 330 U.S. 127, 143 (1947).
-
-
-
-
231
-
-
0347544401
-
-
note
-
As the Court has noted, "there would be no reason to require a State to submit assurances to the [federal agency] if the statute did not require the State's findings to be reviewable in some manner by the [federal agency]." Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 514 (1990).
-
-
-
-
232
-
-
0346283404
-
-
Pub. L. No. 104-193, § 103, 110 Stat. 2105, 2112-61 (1996)
-
Pub. L. No. 104-193, § 103, 110 Stat. 2105, 2112-61 (1996).
-
-
-
-
233
-
-
0347544458
-
-
§ 103.A.417, 110 Stat. at 2159
-
§ 103.A.417, 110 Stat. at 2159.
-
-
-
-
234
-
-
0346215293
-
Answers to Your Welfare Worries
-
Jan.
-
See Carl Tubbesing & Sheri Steisel, Answers to Your Welfare Worries, STATE LEGISLATURES, Jan. 1997, at 12 (arguing that "[t]he state plan does not have the effect of law and can be modified at any time").
-
(1997)
State Legislatures
, pp. 12
-
-
Tubbesing, C.1
Steisel, S.2
-
235
-
-
0346304070
-
On Misusing "Revolution" and "Reform": Procedural Due Process and the New Welfare Act
-
See Cynthia R. Farina, On Misusing "Revolution" and "Reform": Procedural Due Process and the New Welfare Act, 50 ADMIN. L. REV. 591, 620 (1998) (noting that welfare reform "was lobbied for by, and sold to, the states as a devolution of control over program content from the national to the local level").
-
(1998)
Admin. L. Rev.
, vol.50
, pp. 591
-
-
Farina, C.R.1
-
236
-
-
0346913551
-
-
note
-
While the TANF legislation includes the Brown Amendment authorizing state legislative appropriation of TANF money, this authorization is limited to appropriations "consistent with the terms and conditions required under [the Block grant provisions]." See supra note 173. One such term and condition is that the state submit a plan to implement the TANF program.
-
-
-
-
237
-
-
0348174065
-
-
See infra notes 185-93 and accompanying text
-
See infra notes 185-93 and accompanying text.
-
-
-
-
238
-
-
0348174125
-
-
See infra notes 194-98 and accompanying text
-
See infra notes 194-98 and accompanying text.
-
-
-
-
239
-
-
0346283400
-
-
391 A.2d 595 (Pa. 1978)
-
391 A.2d 595 (Pa. 1978).
-
-
-
-
240
-
-
0346913525
-
-
See Shapp, 391 A.2d at 610 (Roberts, J., dissenting)
-
See Shapp, 391 A.2d at 610 (Roberts, J., dissenting).
-
-
-
-
241
-
-
0346283408
-
-
See Shapp, 391 A.2d at 600-01
-
See Shapp, 391 A.2d at 600-01.
-
-
-
-
242
-
-
0346283407
-
-
See Shapp, 391 A.2d at 601
-
See Shapp, 391 A.2d at 601.
-
-
-
-
243
-
-
0346913550
-
-
note
-
See Shapp, 391 A.2d at 606 ("As long as . . . the terms and conditions proscribed by the Congress are not violated, there is no inconsistency between the provisions of the federal programs and state legislative administration of the funds." (emphasis added)).
-
-
-
-
244
-
-
0347544408
-
-
See Shapp, 391 A.2d at 600-01
-
See Shapp, 391 A.2d at 600-01.
-
-
-
-
245
-
-
0348174077
-
-
See infra note 204
-
See infra note 204.
-
-
-
-
246
-
-
0347544411
-
-
Shapp, 391 A.2d at 605
-
Shapp, 391 A.2d at 605.
-
-
-
-
247
-
-
0347544405
-
-
See supra notes 166-72 and accompanying text
-
See supra notes 166-72 and accompanying text.
-
-
-
-
248
-
-
0347544409
-
-
Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972)
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
-
-
-
249
-
-
0348174064
-
-
378 N.E.2d 433 Mass.
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
(1978)
Opinion of the Justices to the Senate
-
-
-
250
-
-
0347544412
-
-
Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974)
-
See Navajo Tribe v. Arizona Dept. of Admin., 528 P.2d 623 (Ariz. 1975); MacManus v. Love, 499 P.2d 609 (Colo. 1972); Opinion of the Justices to the Senate, 378 N.E.2d 433 (Mass. 1978); Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
-
-
-
251
-
-
0039147160
-
-
378 N.E.2d at 436
-
See, e.g., Opinion of the Justices, 378 N.E.2d at 436. For a general discussion of the decisions' reasoning, see George Brown, Federal Funds and National Supremacy: The Role of State Legislatures in Federal Grant Programs, 28 AM. U. L. REV. 279, 288-90 (1979).
-
Opinion of the Justices
-
-
-
252
-
-
0348106515
-
Federal Funds and National Supremacy: The Role of State Legislatures in Federal Grant Programs
-
See, e.g., Opinion of the Justices, 378 N.E.2d at 436. For a general discussion of the decisions' reasoning, see George Brown, Federal Funds and National Supremacy: The Role of State Legislatures in Federal Grant Programs, 28 AM. U. L. REV. 279, 288-90 (1979).
-
(1979)
Am. U. L. Rev.
, vol.28
, pp. 279
-
-
Brown, G.1
-
253
-
-
0039147160
-
-
378 N.E.2d at 436
-
For instance, the Massachusetts Supreme Court stated conclusorily that "the [federal] money is impressed with a trust and is not subject to appropriation by the Legislature." Opinion of the Justices, 378 N.E.2d at 436. The court made no effort to explain why the legislature would be incapable of carrying out the "trust."
-
Opinion of the Justices
-
-
-
254
-
-
0346913553
-
-
note
-
See, e.g., Chaffin v. Arkansas Game & Fish Commn., 757 S.W.2d 950 (Ark. 1988) (stating that legislative appropriation for state game and fish commission cannot dictate to commission how much money to spend on magazine); Communications Workers of Amer. v. Florio, 617 A.2d 223 (N.J. 1992) (holding that state legislature cannot use appropriations to define which categories of government employees should be laid off).
-
-
-
-
255
-
-
0346913552
-
-
note
-
See, e.g., Colorado Gen. Assembly v. Lamm, 738 P.2d 1156 (Colo. 1987) (stating that governor has exclusive power to allocate federal grants among programs but legislature has exclusive power to transfer portions of block grants between departments). This decision is rooted in the Court's earlier decision, Colorado Gen. Assembly v. Lamm, 700 P.2d 508 (Colo. 1985). When confronted with the enormous discretion possessed by state governments in managing federal funds, the Colorado Supreme Court has attempted to cabin the implications of its anti-appropriation doctrine by barring governors from transferring federal block grant revenues between different state departments without authorization from the state legislature.
-
-
-
-
256
-
-
0348174078
-
-
note
-
Such a theory of gubernatorial powers is analogous to the state-law doctrine followed in "strong governor" states, like New York, that when the legislature fails to specify how revenues are to be allocated, the governor can determine the allocation among subprograms. See Alliance for Progress v. New York State Div. of Hous. & Community Renewal, 532 N.Y.S.2d 821 (N.Y. Sup. Ct. 1988); New York Pub. Interest Group v. Carey, 390 N.Y.S.2d 236 (N.Y. Sup. Ct. 1976).
-
-
-
-
257
-
-
0346913554
-
-
462 U.S. 919 (1983)
-
462 U.S. 919 (1983).
-
-
-
-
258
-
-
0346283409
-
-
478 U.S. 714 (1986)
-
478 U.S. 714 (1986).
-
-
-
-
259
-
-
0346913559
-
-
note
-
See, e.g., General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); Tucker v. South Carolina Dept. of Highways and Pub. Transp., 424 S.E.2d 468 (S.C. 1992) (barring county's legislative delegation from exercising legislative veto over governor's highway projects within county); West Virginia v. Hechler, 462 S.E.2d 586 (W. Va. 1995) (barring legislative veto of agency rules).
-
-
-
-
260
-
-
0002180714
-
Congress' Power of the Purse
-
See Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1356-60 (1988).
-
(1988)
Yale L.J.
, vol.97
, pp. 1343
-
-
Stith, K.1
-
261
-
-
0346913558
-
-
note
-
See, e.g., ALA. CONST. art. IV, § 72; ALASKA CONST. art. IX, § 13; ARK. CONST. art. V, § 29; CAL. CONST. art. XVI, § 7 (West's Ann. 1996). Only two of these clauses - in the Constitutions of New Mexico and Delaware -suggest that the "law" in question must be enacted by the state legislature rather than by Congress. See DEL. CONST. art. VIII, § 6 (requiring appropriation by "Act of the General Assembly"); N.M. CONST. art. IV. § 30 (requiring appropriation by "the legislature"). The practice in both states, however, is not to appropriate federal grants. Indeed, the New Mexico Supreme Court seems to bar such appropriation. See New Mexico ex rel. Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974).
-
-
-
-
262
-
-
0346283452
-
-
note
-
For instance, in states with traditions of strong gubernatorial offices - such as New Jersey and New York - the limit on state legislative appropriation may seem trivial. In states like Colorado, where the governor has few powers over the budget, the limitation may be more significant.
-
-
-
-
263
-
-
0346283413
-
-
See Rosado v. Wyman, 397 U.S. 397 (1970); King v. Smith, 392 U.S. 309 (1968)
-
See Rosado v. Wyman, 397 U.S. 397 (1970); King v. Smith, 392 U.S. 309 (1968).
-
-
-
-
264
-
-
0347544452
-
-
note
-
In cases where the state legislature has agreed to participate in a federal program but has failed to appropriate either federal grant revenue or state matching funds, state courts have occasionally argued that the state legislature is obliged to appropriate the necessary revenue. See Coalition For Basic Human Needs v. King, 654 F.2d 838 (1st Cir. 1981); Kimble v. Solomon, 599 F.2d 599 (4th Cir. 1979); Knoll v. White, 595 A.2d 665 (Pa. Commw. 1991).
-
-
-
-
265
-
-
0347544454
-
-
See infra note 222
-
See infra note 222.
-
-
-
-
266
-
-
0347544414
-
-
For the complex series of decisions, see supra note 19
-
For the complex series of decisions, see supra note 19.
-
-
-
-
267
-
-
0347544455
-
-
In re City of Bridgeport, 128 B.R. 688 (Bankr. D. Conn. 1991)
-
In re City of Bridgeport, 128 B.R. 688 (Bankr. D. Conn. 1991).
-
-
-
-
268
-
-
0348174114
-
-
note
-
The combined cost of the two dams would equal $146 million and generate 465,000 kilowatts of power. The larger dam measured 510 feet from the bedrock and was expected to inundate 10,000 acres of land as far as 21 miles upstream. See State of Washington Dept. of Game v. Federal Power Commn., 207 F.2d 391, 393 (9th Or. 1953); City of Tacoma I, supra note 4, 262 P.2d at 216-17 (Wash. 1953).
-
-
-
-
269
-
-
0347544451
-
-
See State of Washington Dept. of Game, 207 F.2d at 395
-
See State of Washington Dept. of Game, 207 F.2d at 395.
-
-
-
-
270
-
-
0347544413
-
-
See State of Washington Dept. of Game, 207 F.2d at 398
-
See State of Washington Dept. of Game, 207 F.2d at 398.
-
-
-
-
271
-
-
0346283450
-
-
See State of Washington Dept. of Game, 207 F.2d at 396
-
See State of Washington Dept. of Game, 207 F.2d at 396.
-
-
-
-
272
-
-
0347544453
-
-
See State of Washington Dept. of Game, 207 F.2d at 396
-
See State of Washington Dept. of Game, 207 F.2d at 396.
-
-
-
-
273
-
-
0346283457
-
-
See City of Tacoma II, supra note 19, 307 P.2d at 577
-
See City of Tacoma II, supra note 19, 307 P.2d at 577.
-
-
-
-
274
-
-
0347544456
-
-
See City of Tacoma IV, supra note 19, 357 U.S. at 341
-
See City of Tacoma IV, supra note 19, 357 U.S. at 341.
-
-
-
-
275
-
-
0348174120
-
-
See City of Tacoma I, supra note 4, 262 P.2d at 218
-
See City of Tacoma I, supra note 4, 262 P.2d at 218.
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276
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0346283454
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note
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The Washington Supreme Court reasoned that this state law did not prevent private utilities from constructing a dam if the private utility held a federal license to construct the dam: the state law would be preempted by the federal license governing a navigable waterway. The issue, then, was whether the Fish Sanctuary Act should be construed to prohibit municipal dams even if federal law preempted its application to private dams. As the dissenters on the Washington Supreme Court noted, this was a state-law question of severability, a question that even a majority of the Washington Supreme Court answered in favor of the City: according to the state supreme court, there was no indication in the Fish Sanctuary Act that the state legislature intended to place municipalities in a position inferior to private utilities, by stripping them of powers that the private utilities would continue to enjoy. See City of Tacoma I, supra note 4, 262 P.2d at 229. Both courts reasoned that, if the Fish Sanctuary Act was preempted as to private entities, then purely as a matter of state law, it ought to be preempted as to municipalities as well.
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277
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City of Tacoma 11, supra note 19, 307 P.2d at 575
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City of Tacoma 11, supra note 19, 307 P.2d at 575.
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278
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0346283455
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City of Tacoma II, supra note 19, 307 P.2d at 577
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City of Tacoma II, supra note 19, 307 P.2d at 577.
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279
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0346913591
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Iowa Supreme Court in City of Clinton v. Cedar Rapids & Mo. R.R., 24 Iowa 455 (1868)
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Dillon's Rule was first formulated by Judge John Dillon, sitting on the Iowa Supreme Court in City of Clinton v. Cedar Rapids & Mo. R.R., 24 Iowa 455 (1868). Dillon incorporated the rule in his 1872 treatise on municipal corporations, stating that: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation. JOHN DILLON, COMMENTARIES ON THE LAWS OF MUNICIPAL CORPORATIONS § 237 (5th ed. 1911). For a discussion of the role that the rule continues to play in city government, see Richard Briffault, Our Localism (pt. I), 90 COLUM. L. REV. 1, 8 (1990).
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280
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0042072262
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§ 237 5th ed.
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Dillon's Rule was first formulated by Judge John Dillon, sitting on the Iowa Supreme Court in City of Clinton v. Cedar Rapids & Mo. R.R., 24 Iowa 455 (1868). Dillon incorporated the rule in his 1872 treatise on municipal corporations, stating that: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation. JOHN DILLON, COMMENTARIES ON THE LAWS OF MUNICIPAL CORPORATIONS § 237 (5th ed. 1911). For a discussion of the role that the rule continues to play in city government, see Richard Briffault, Our Localism (pt. I), 90 COLUM. L. REV. 1, 8 (1990).
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(1911)
Commentaries on the Laws of Municipal Corporations
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Dillon, J.1
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281
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0005374453
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Our Localism (pt. I)
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Dillon's Rule was first formulated by Judge John Dillon, sitting on the Iowa Supreme Court in City of Clinton v. Cedar Rapids & Mo. R.R., 24 Iowa 455 (1868). Dillon incorporated the rule in his 1872 treatise on municipal corporations, stating that: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation. JOHN DILLON, COMMENTARIES ON THE LAWS OF MUNICIPAL CORPORATIONS § 237 (5th ed. 1911). For a discussion of the role that the rule continues to play in city government, see Richard Briffault, Our Localism (pt. I), 90 COLUM. L. REV. 1, 8 (1990).
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(1990)
Colum. L. Rev.
, vol.90
, pp. 1
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Briffault, R.1
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282
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0347544461
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note
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Indeed, the laws governing the incorporation of municipalities tend to allow the promiscuous creation of municipal corporations even when such incorporation gravely injures the welfare of persons who are carved out of the cities' boundaries by the incorporators.
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283
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0345794878
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In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law?
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For a different defense of Dillon's Rule in terms of policy, see Clayton P. Gillette, In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law?, 67 CHI.-KENT L. REV. 959 (1991). Professor Gillette argues that Dillon's Rule is not well-designed to prevent external costs, as it does not distinguish between municipal actions that impose such costs and those that do not. I suggest, however, that there will tend to be a high correlation between those activities that municipalities have clearest authority to perform based on state statute and tradition, and those activities that are least likely to impose external costs. To the extent that a municipality has performed some function uncontroversially for centuries, it is likely that the activity is one the municipality is well-suited to perform.
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(1991)
Chi.-Kent L. Rev.
, vol.67
, pp. 959
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Gillette, C.P.1
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284
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0347544404
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note
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The Washington legislature arguably had not had such an opportunity. The Washington Supreme Court had held that cities could condemn state-owned property when such property was not currently being used by the state for some public purpose. But the court had never suggested that cities could condemn state-owned property actively used by the state. See City of Tacoma v. State, 209 P. 700, 701 (Wash. 1922); Roberts v. City of Seattle, 116 P. 25 (Wash. 1911).
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285
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0347476538
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Daley's Airport Gambit Won't Fly
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Letter to the Editor, May 24
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See Henry J. Hyde, Letter to the Editor, Daley's Airport Gambit Won't Fly, CHI. TRIB., May 24, 1995.
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(1995)
Chi. Trib.
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Hyde, H.J.1
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286
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0348106511
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Chicago, Gary, Ind., Want Illinois Lawsuit Thrown Out
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Aug. 31
-
For an overview of the controversy over Daley's effort to protect Chicago's proposed airport from state oversight, see Karen Pierog, Chicago, Gary, Ind., Want Illinois Lawsuit Thrown Out, BOND BUYER, Aug. 31, 1995, at 5. Illinois's efforts to bar the Gary-Chicago pact through litigation failed when Federal District Dourt Judge Leinenweber ruled that the plaintiff, the state of Illinois, failed to state a federal claim and lacked standing. See Illinois ex rel. Edgar v. Chicago, 942 F. Supp. 366, 373-74 (N.D. Ill. 1996).
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(1995)
Bond Buyer
, pp. 5
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Pierog, K.1
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287
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0346913557
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Illinois ex rel. Edgar v. Chicago, 942 F. Supp. 366, 373-74 (N.D. Ill. 1996)
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For an overview of the controversy over Daley's effort to protect Chicago's proposed airport from state oversight, see Karen Pierog, Chicago, Gary, Ind., Want Illinois Lawsuit Thrown Out, BOND BUYER, Aug. 31, 1995, at 5. Illinois's efforts to bar the Gary-Chicago pact through litigation failed when Federal District Dourt Judge Leinenweber ruled that the plaintiff, the state of Illinois, failed to state a federal claim and lacked standing. See Illinois ex rel. Edgar v. Chicago, 942 F. Supp. 366, 373-74 (N.D. Ill. 1996).
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288
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0348174118
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note
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The most commonly invoked justification for Congress's regulatory power is the need for federal regulation of activities that impose costs - "substantial effects" - outside the jurisdiction of the state in which they occur, making regulation of the activities by individual states impractical. See Wickard v. Filburn, 317 U.S. 111 (1942).
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289
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0347544459
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note
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So, for instance, in opposing the proposed airport of the City of Chicago, the State of Illinois might not have been motivated exclusively by a desire to prevent the City from imposing external costs of noise on the suburbs. It might also have been motivated by a less benign desire to exercise exclusive control over the patronage provided by construction contracts and jobs.
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290
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1542396381
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Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution
-
For such an argument, see Samuel Issacharoff & Erica Worth Harris, Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution, 72 N.Y.U. L. REV. 780, 808-09 (1997).
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(1997)
N.Y.U. L. Rev.
, vol.72
, pp. 780
-
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Issacharoff, S.1
Harris, E.W.2
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291
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0002692296
-
Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules
-
Penalty default rules are rules construing contractual terms against the interest of the person most capable of changing the rules even when such a construction is inefficient because the parties would bargain for a different rule. The function of the penalty default is to give the person most capable of changing the rule an incentive to reveal his or her preferences. See Ian Ayres & Robert Gertner. Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 95-107 (1989).
-
(1989)
Yale L.J.
, vol.99
, pp. 87
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-
Ayres, I.1
Gertner, R.2
-
293
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0348174062
-
-
§§ 6.04, 18.11
-
See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, INTERGOVERNMENTAL SERVICE ARRANGEMENTS FOR DELIVERING LOCAL PUBLIC SERVICES: UPDATE 1983, at 9 (1985); CHARLES SANDS ET AL., LOCAL GOVERNMENT LAW §§ 6.04, 18.11 (1981); see also Goreham v. Des Moines Metro. Area Solid Waste Agency, 179 N.W.2d 449, 455 (Iowa 1970).
-
(1981)
Local Government Law
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-
Sands, C.1
-
294
-
-
0348174117
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-
Goreham v. Des Moines Metro. Area Solid Waste Agency, 179 N.W.2d 449, 455 (Iowa 1970)
-
See ADVISORY COMMN. ON INTERGOVERNMENTAL RELATIONS, INTERGOVERNMENTAL SERVICE ARRANGEMENTS FOR DELIVERING LOCAL PUBLIC SERVICES: UPDATE 1983, at 9 (1985); CHARLES SANDS ET AL., LOCAL GOVERNMENT LAW §§ 6.04, 18.11 (1981); see also Goreham v. Des Moines Metro. Area Solid Waste Agency, 179 N.W.2d 449, 455 (Iowa 1970).
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-
-
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295
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84857019876
-
When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy
-
See Michael W. McConnell & Randall C. Picker, When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy, 60 U. CHI. L. REV. 425, 460 (1993).
-
(1993)
U. Chi. L. Rev.
, vol.60
, pp. 425
-
-
McConnell, M.W.1
Picker, R.C.2
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296
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0346215282
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Fiscal Distress and Politics: The Bankruptcy Filing of Bridgeport as a Case Study in Reclaiming Local Sovereignty
-
For a useful statement of the facts in the Bridgeport case, see Dorothy A. Brown, Fiscal Distress and Politics: The Bankruptcy Filing of Bridgeport as a Case Study in Reclaiming Local Sovereignty, 11 BANKR. DEV. J. 625 (1995).
-
(1995)
Bankr. Dev. J.
, vol.11
, pp. 625
-
-
Brown, D.A.1
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297
-
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0348174116
-
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See, e.g., McConnell & Picker, supra note 233, at 458-61
-
See, e.g., McConnell & Picker, supra note 233, at 458-61.
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-
-
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298
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0346215283
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This Way to the Egress: Should Bridgeport's Chapter 9 Filing Have Been Dismissed?
-
See Rachael E. Schwartz, This Way to the Egress: Should Bridgeport's Chapter 9 Filing Have Been Dismissed?, 66 AM. BANKR. L.J. 103, 127 (1992).
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(1992)
Am. Bankr. L.J.
, vol.66
, pp. 103
-
-
Schwartz, R.E.1
-
299
-
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0348174115
-
-
See id. at 122 n.107
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See id. at 122 n.107.
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300
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84928508389
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Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure
-
Cf. Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structure, 76 CAL. L. REV. 267, 286 (1988) (explaining why the Contract Clause limits power of state legislatures but not power of Congress).
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(1988)
Cal. L. Rev.
, vol.76
, pp. 267
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-
McConnell, M.W.1
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301
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0347544457
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See Brown, supra note 234, at 637
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See Brown, supra note 234, at 637.
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