1989]                      AMPLIFYING THE TENTH AMENDMENT                       917


agencies.12 In one study, the ACIR characterized federal regulatory agencies as costly, inconsistent, intrusive, ineffective, inefficient, inflexible, and unaccountable.13

This study further states that a primary concern of state and local officials is the cost federal mandates impose and the potential waste of millions of dollars in federal, state, and local monies when a federal program fails.14 Another major concern of state and local officials is the inflexibility of federally mandated programs.15 The ACIR study found a general perception among state and local officials that federal programs create rigid policies     and performance  standards,  failing  to  take into account the varying

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12. The Advisory Commission on Intergovernmental Relations was created by Congress in 1959 to monitor the American federal system and to recommend improvements. It is a permanent bipartisan body representing the executive and legislative branches of federal, state and local government, and the public. The Commission is composed of twenty six members - nine representing the federal government, fourteen representing state and local government, and three representing the public. See, e.g., ROUNDTABLE, supra note 9, at backcover.

13. REGULATORY REFORM, supra note 11, at 11-16. [Federal intergovernmental programs are prone to performance shortfalls during the implementation phase. Plans that seemed reasonable in the committee rooms and on the floor of the Congress may go awry when statutes are translated into specific rules and projects by a lengthy chain of federal, state and local administrators. Often, the results have been disappointing.

. . . .

. . . It is not surprising that some national officials see 'federalism' as simply another obstacle to getting their jobs done.

. . . .

Id. at 253.

In these and many other areas, actual performance has fallen well short of initial goals and expectations. Federal regulatory programs have proven to be slow getting off the ground and difficult to monitor and enforce. . .

 [C]ongress has adopted some regulatory statutes or provisions quite casually, with little consideration of their suitability to the task at hand.

Id. at 254.

[F]ederal intergovernmental regulation is warranted only when a clear and convincing case has demonstrated both the necessity of such intervention and a marked inability of state and local governments to address the regulatory problem involved. . . .

. . . Some believe that the most intrusive of these newer regulatory devices threaten to convert agencies of state and local government into virtual administrative arms of the federal government.

. . . [S]everal regulations were enacted with only superficial Congressional deliberation. . . . All were passed with only a vague understanding of their implications by the Congress as a whole, and some were subject to no consideration by Congressional committees whatsoever, originating as amendments offered on the House or Senate floor.

. . . [T]he current framework for determining the federal role in such regulation is ineffective and inadequate.

Id. at 259. Furthermore, what these regulatory provisions share is the feature of "commandeering" the basic decision-making process of state government. Id. at 275 (referring to Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum.L.Rev. 847, 858 (1979)). If a state does not want to submit a proposed permanent program that complies with the act and implementing regulations, the full regulatory burden should be borne by the federal government. Then, there can be no suggestion that the act commandeers the legislative process of the states by directly compelling them to enact and enforce a federal regulation. Id. at 274 (referring to Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1980), rev'd, Garcia, 469 U.S. 528 (1985)). If this conscriptive pattern of preemptions goes unchallenged or unchecked, the legal, fiscal and political consequences for our federal system will be profoundly negative. Id. at 290.

14. Id. at 12.

15. Id.

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