Lewis & Clark Law School
May 11, 2010
52 Boston College Law Review 1, 2011.
William & Mary Law School Research Paper No. 09-47
Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that dominates political discourse and judicial doctrine, it demonstrates that the boundary between state and federal power is negotiated on scales large and small, on an ongoing basis. The Article is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap.
The Article begins by situating its inquiry within the central federalism discourse about which branch can best safeguard the values that give federalism meaning: Congress, though political safeguards; the Court, by judicially enforceable constraints; or the Executive, through administrative process. Each school, however, considers only unilateral branch activity - missing the important ways that branch actors work bilaterally across state-federal lines to protect federalism values through various forms of negotiated governance. Because unilateral interpretive methods fail to establish clear boundaries at the margins of state and federal authority, regulators increasingly turn to procedural constraints within intergovernmental bargaining to allocate contested authority and facilitate collaboration in uncertain federalism territory. Negotiation thus bridges interpretive gaps unresolved by more conventionally understood forms of interpretation.
Creating the first theoretical framework for organizing federalism bargaining, the Article provides a taxonomy of the different opportunities for state-federal bargaining available within various constitutional and statutory frameworks. Highlighting forms of conventional bargaining, negotiations to reallocate authority, and joint policymaking bargaining, the article maps this vast, uncharted landscape with illustrations ranging from the 2009 Stimulus Bill to Medicaid to climate policy. The taxonomy demonstrates how widely federalism bargaining permeates American governance, including not only the familiar example of spending power deals, but also subtler forms that have escaped previous scholarly notice as forms of negotiation at all.
The Article then reviews the different media of exchange within federalism bargaining and what legal rules constrain them, together with supporting data from primary sources. Finally, it evaluates how federalism bargaining can supplement unilateral interpretation, legitimized by the procedural constraints of mutual consent and the procedural engineering of regard for federalism values. Having offered recommendations about the kinds of federalism bargaining that should be encouraged, the Article offers recommendations for legislators, executive actors, stakeholders, practitioners, and adjudicators about how best to accomplish these goals.
Number of Pages in PDF File: 136Accepted Paper Series
Date posted: April 5, 2010 ; Last revised: August 3, 2012
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