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Sen. John Kuehn

Sen. John Kuehn

District 38

A term frequently used to describe state policies is “unfunded mandate”. In general, this refers to a statute that requires a government to take an action or perform a function without directly providing funds. The term originated in reference to laws and regulations passed by the federal government that required state action, while requiring states to pay the bill through taxes assessed by the state level. National environmental regulations are often cited examples of federal unfunded mandates upon the states.

In recent years local political subdivisions, including cities, public schools, natural resource districts, and others have adopted the practice of describing state statutes as unfunded mandates, drawing a parallel to the federal practice. The comparison, however, is not equitable. The legal framework between the federal government and the states is distinctly different from the relationship between the state government and the local political subdivisions it creates.

Specifically, under the U.S. Constitution, the federal government does not have absolute power over the states. Known as federalism, the states are seen as distinct and autonomous of the national government, which has specific enumerated powers listed in Article I, Section 8 of the U.S. Constitution. Furthermore, the Tenth Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This is in stark contrast to the relationship between the state government and the local political subdivisions it creates. Nebraska is known as a “Dillon’s Rule” state. As described in the 1868 court case that established the doctrine, “municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control”. Thus, local governments are not entities of themselves. Their creation, authority to tax, ability to spend, and areas of jurisdiction are granted entirely by the Legislature. They cannot exercise any authority not specifically granted to them by the Legislature.

To that end, local governments’ ability to tax is granted by the Legislature, which provides funding for the responsibilities required of them by the Legislature. Whether or not funds from the state treasury follow a particular statutory requirement is irrelevant, as the ability to collect property taxes, sales taxes, issue bonds, and charge fees are granted by the state. Local governance set the priorities for how they choose to implement state authorized taxing authority.

It can be amusing to see what activities local subdivisions label “unfunded mandates”. These include Natural Resources Districts’ labelling compliance with their resource management plans as such. Managing their resources is their primary reason for existence. Municipalities list public records compliance and public notice publication requirements as unfunded mandates, despite these are essential functions of local, citizen led government. School districts cite assessment of student learning. By such broad and illogical definitions, any local government activity paid for by local tax dollars is an “unfunded mandate”. That does not stand up to reason, nor is it consistent with Dillon’s Rule.

Because the term is politically charged, it is often used to generate opposition to a bill. For example, this past session, the education lobby, in opposition to LB 651, called requiring all third grade students to be grade level proficient in reading an unfunded mandate. Nevermind that teaching reading is the primary function of early elementary education. In contrast, LB 427, which required schools to provide physical accommodations and an academic support plan for pregnant and breastfeeding students, was supported by the Nebraska State Education Association in the committee hearing. No funds were provided by the state to build and maintain these required facilities, nor to develop the individualized learning plans for student mothers. The term “unfunded mandate” was rebuffed by proponents during floor debate. It is important to note that the teacher’s union saw developing plans to enable elementary students to read at grade level as an unfunded mandate, but not individualized accommodations for high school mothers wishing to breastfeed during the school day. The inconsistency between the two positions reflects political ideology, not principle.

Local governance of our communities is a hallmark of Nebraska. The ability of locally elected officials to make decisions as close to taxpayers is critical. Serving in locally elected office requires just as much dedication and responsibility as serving at the state level. Prioritizing taxing and spending decisions locally can be especially difficult, as the decisions directly impact your neighbors, coworkers, and community.

I fully support local control, but recognize there are instances where inconsistencies based on arbitrary political boundaries are not in the best interest of Nebraskans, either locally or statewide. As establishments of the state, local governments must exercise extreme prudence and accountability for prioritizing tax dollars and imposing regulations. In turn, the state must judiciously exercise its authority over the political subdivisions it creates. Cooperation is vital to representing the best interests of the ultimately arbiter of political power: the individual citizens.

Sen. John Kuehn

District 38
Room #2000
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2732
Email: jkuehn@leg.ne.gov
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