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29 2 Federalism and Intergovernmental Relations in the Commonwealth of Kentucky Michael W. Hail This chapter covers American federalism with a focus on Kentucky politics. The politics of federalism is examined from a comparative perspective for purposes of institutional analysis with other states. The founding and historical development of the Kentucky Constitution are described, including the parallels with national federalism, such as the separation of powers and the system of checks and balances. The government structures of the Kentucky Constitution and the institutional relationships to substate governmental units of city, county, and special-district governments are examined in this regard. Intergovernmental relations among levels of government are described with regard to public policy making in Kentucky. Issues that are addressed include interjurisdictional competition, unfunded mandates, interlocal agreements, and intergovernmental management. Federalism Scholar David Walker has identified institutions of American federalism and intergovernmental relations as including the executive, bureaucratic, congressional ,judicial,andstateinstitutionalcomponents,eachwithitsownrolein“federalism.”1 The dynamics of the federal system include institutional behavior in terms of “cooperation , competition, conflict, and conflict resolution.”2 The definition of federalism is “a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government.”3 The term “intergovernmental relations” is defined in this research as “a body of activities and interactions occurring between governmental units of all types and levels within the U.S. federal system.”4 In examining federalism in Kentucky, the relations between the Kentucky state government and the U.S. federal government will be the primary focus, and with regard to intergovernmental relations, that federal-state analysis is 30 State and Local Institutions expanded to include Kentucky state government and its relationship to other state governments , as well as local and regional subunits of government. Federalism and State Sovereignty The U.S. Constitution provides for dual sovereignty, meaning that ultimate power and authority are held simultaneously by both national and state governments. As the U.S. Supreme Court stated in Texas v. White, “The preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union. . . . The Constitution, in all its provisions , looks to an indestructible Union, composed of indestructible States.”5 The source of substantive constitutional authority is contained in the Tenth Amendment , which 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 establishes what are called the “reserved powers,” which are not stated in the U.S. Constitution as federal powers or which are not prohibited to states. These are state constitutional powers because the supremacy clause applies only to those powers that are constitutionally federal. This means that there are expansive areas that are not constitutionally federal. Some examples of these types of traditional state authority are found in policy-making areas, such as education, health, police, fire, elections, and economic development. Respecting dual sovereignty was underscored by the Eleventh Amendment, which extended sovereign immunity by protecting states from action in federal courts by citizens of another state without the consent of that state. The Eleventh Amendment struck down judicial interpretation of state sovereignty in Chisholm v. Georgia.6 The Eleventh Amendment is one of the few instances where the amendment process has countermanded the judicial interpretation of the constitution. And with the Eleventh Amendment, the dual sovereignty of the states was affirmed. As Supreme Court Justice Hugo Black wrote in Younger v. Harris (1971), federalism is “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”7 The federalism jurisprudence of the Court is consistent with the original intent of the Founding Fathers, such as that expressed in The Federalist 45 by James Madison: “The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”8 The federal and state governments both hold intrinsic and independent sovereignty. Two examples illustrate that concurrent power. Dual citizenship reflects the dual sovereignty of American federalism, which is demonstrated in the existence of separate constitutions that operate on citizens concurrently...

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