From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. This executive federalism fits uneasily into existing understandings: it departs from expectations that Congress formulates national policy and mediates state-federal relationships; it poses a challenge to popular suggestions that the president is engaged in unilateral action; and it comes as a surprise to those who have studied executive federalism but insist it is the peculiar province of parliamentary federations. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America. After describing the emerging practice of American executive federalism and the collaboration and contestation it entails, this article offers a qualified defense. It suggests that executive federalism facilitates a form of governance suited to polarization: state-differentiated national policy. It argues that executive federalism offers a promising forum for bipartisan compromise because it involves iterative, relatively nontransparent interactions among disaggregated government actors. And it makes a case for executive federalism in terms of democratic representation notwithstanding obvious shortcomings. The article also questions some widespread doctrinal assumptions. In particular, it proposes that federalism might enhance, rather than diminish, federal agencies’ claims to Chevron deference, and it advocates judicial receptivity to federal executive involvement in interstate agreements.
Executive Federalism Comes to America,
Virginia Law Review, Vol. 102, 2016; Columbia Public Law Research Paper No. 14-490
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1938