The term unfunded mandate refers to any Federal Government action that causes non-Federal Government entities increased costs, generally in order to fulfill some Federal purpose. In general, the term “unfunded mandate” is often meant as a synonym for the term “Federal Mandate”. This latter term is defined as either a “Federal Intergovernmental Mandate” or a “Federal Private Sector Mandate”.
Definition of “Federal Mandate”
The following text is from section 421(5) of the part B of title IV of the Congressional Budget Act of 1974. Paragraph (6) defines “Federal Mandate” as meaning collectively the definitions set forth in paragraph (5), which precedes it, and paragraph (7), which succeeds it in the text. For easier reading here, paragraph (6) is listed first:
“(6) Federal mandate.—The term ‘Federal mandate’ means a Federal intergovernmental mandate or a Federal private sector mandate, as defined in paragraphs (5) and (7).
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“(5) Federal intergovernmental mandate.—The term ‘Federal intergovernmental mandate’ means—
“(A) any provision in legislation, statute, or regulation that—
“(i) would impose an enforceable duty upon State, local, or tribal governments, except—
“(I) a condition of Federal assistance; or
“(II) a duty arising from participation in a voluntary Federal program, except as provided in subparagraph (B)); or
“(ii) would reduce or eliminate the amount of authorization of appropriations for—
“(I) Federal financial assistance that would be provided to State, local, or tribal governments for the purpose of complying with any such previously imposed duty unless such duty is reduced or eliminated by a corresponding amount; or
“(II) the control of borders by the Federal Government; or reimbursement to State, local, or tribal governments for the net cost associated with illegal, deportable, and excludable aliens, including court-mandated expenses related to emergency health care, education or criminal justice; when such a reduction or elimination would result in increased net costs to State, local, or tribal governments in providing education or emergency health care to, or incarceration of, illegal aliens; except that this subclause shall not be in effect with respect to a State, local, or tribal government, to the extent that such government has not fully cooperated in the efforts of the Federal Government to locate, apprehend, and deport illegal aliens;
“(B) any provision in legislation, statute, or regulation that relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority, if the provision—
“(i)(I) would increase the stringency of conditions of assistance to State, local, or tribal governments under the program; or
“(II) would place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding to State, local, or tribal governments under the program; and
“(ii) the State, local, or tribal governments that participate in the Federal program lack authority under that program to amend their financial or programmatic responsibilities to continue providing required services that are affected by the legislation, statute, or regulation.
“(7) Federal private sector mandate.—The term ‘Federal private sector mandate’ means any provision in legislation, statute, or regulation that—
“(A) would impose an enforceable duty upon the private sector except—
“(i) a condition of Federal assistance; or
“(ii) a duty arising from participation in a voluntary Federal program; or
“(B) would reduce or eliminate the amount of authorization of appropriations for Federal financial assistance that will be provided to the private sector for the purposes of ensuring compliance with such duty.
Federal statutes and regulations that require state, local, or tribal governments or the private sector to expend resources to achieve legislative goals without being provided federal funding to cover the costs.
The Unfunded Mandates Reform Act of 1995, Pub. L. No. 104–4 (2 U.S.C. §§ 658– 658g), generally defines intergovernmental and private sector mandates as “any provision in legislation, statute, or regulation that imposes an enforceable duty” but excludes “conditions of federal assistance” and “duties that arise from participation in a voluntary federal program,” among others. The Congressional Budget Office (CBO) is required to determine whether the costs to the states or private sector of a mandate in legislation reported from a congressional committee exceeds certain statutory thresholds. This determination is included in the cost estimate provided to Congress on that legislation. The act also contains procedures for congressional consideration of proposed legislation that contains mandates whose costs are estimated to be over the thresholds unless the legislation also provides funding to cover those costs.
Definition of Unfunded Mandates
Unfunded Mandates: A Federal Intergovernmental Mandate is any provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local or tribal government, except as conditions of assistance or duties arising from participation in a voluntary federal program. Exceptions to this rule are: enforcing constitutional rights; statutory prohibitions against discrimination; emergency assistance requested by states; accounting/auditing for federal assistance; national security; Presidential designated emergencies; and Social Security. Provisions that increase stringency of conditions of assistance or decrease federal funding for large state entitlement programs (greater than $500 million) if states lack authority to decrease their responsibilities are considered mandates as well.
A Federal Private Sector Mandate is any provision in legislation, statute, or regulation that would impose an enforceable duty upon the private sector. The exceptions are a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.
[The Congressional Budget Process: An Explanation, Appendix J (Glossary), Committee on the Budget of the U.S. Senate, S. Prt. 105-67 (Revised December 1998).]