Against Cooperative Federalism
George Mason University School of Law; American Enterprise Institute (AEI)
Mississippi Law Journal, Vol. 70, p. 557, 2002
The United States Constitution envisions political conflict and functional separation among independently constituted states and national institutions. Historically, this arrangement has been called "dual federalism," a term that emphasizes the co-existence of state governments with the federal government, with each level of government possessing its own sphere of autonomy and direct coercive authority over citizens. The "dual" adjective stresses federalism's vertical, state-to-federal dimension. In its horizontal, state-to-state perspective, the arrangement may also be called a "competitive federalism." Since dual federalism confines the national government to a limited sphere of autonomy, it compels the states, in the vast realm that lies beyond the national government's reach, to compete for citizens' assets, talents, and affections. Diversity among states, the citizens' ability to vote with their feet, and the disciplining force of state competition are federalism's chief attractions.
In practice, however, American federalism has become an administrative, "cooperative federalism": state and local governments administer and implement federal programs. Many stateadministered programs are funded by the federal government, in whole or, more often, in part. Others take the form of conditional preemption, meaning that the states may choose to administer the federal program or else, cede the regulatory field to the federal government. Cooperative federalism covers an enormous array of regulatory fields, from the environment to education to welfare and, lately, crime control. In its horizontal dimension, cooperative federalism replaces dual federalism's competition with state policy cartels and uniform regulatory baselines.
This article argues that cooperative federalism is a rotten idea, its political popularity notwithstanding. Cooperative federalism undermines political transparency and accountability, thereby heightening civic disaffection and cynicism; diminishes policy competition among the states; and erodes self-government and liberty. The sooner we can think of viable means to curtail cooperative programs and to disentangle government functions, the better off we shall be.
Number of Pages in PDF File: 49
Keywords: cooperative federalismAccepted Paper Series
Date posted: March 10, 2012 ; Last revised: November 2, 2012
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