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This Article proposes a different way of thinking about contemporary American governance, looking to an established foreign practice. Executive federalism – “processes of intergovernmental negotiation that are dominated by the executives of the different governments within the federal system” – is pervasive in parliamentary federations, such as Canada, Australia, and the European Union. Given the American separation of powers arrangement, executive federalism has been thought absent, even “impossible,” in the United States. But the partisan dynamics that have gridlocked Congress and empowered both federal and state executives have generated a distinctive American variant.

Viewing American law and politics through the lens of executive federalism brings four key features into focus. First, executives have become dominant actors at both the state and federal levels. They formulate policy and manage intergovernmental relations. Although executive negotiations have shaped American federalism at least since the New Deal, Congress once superintended them. Today, from healthcare to marijuana to climate change, federal and state executives negotiate without Congress. Second, there is a substantial degree of mutuality among these executives, much more than is suggested by the federal government’s legal supremacy. Federal and state actors turn to state law as well as federal law to further their agendas; sometimes this amplifies conflict, but it also enables officials to find paths to compromise. Third, national policy frequently comes to look different across the states as a result of executive negotiations. Some states more strongly press a position shared by the federal executive, while others offer competing views. Finally, horizontal relationships among the states are critical in setting national policy, as the federal executive builds on interstate agreements and reshapes them in turn.

In charting the emergence of executive federalism in the United States, this Article seeks to identify a distinctive approach to national policymaking and to offer a qualified defense of the phenomenon.


Constitutional Law | Law | Political Theory


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