States as Interest Groups in the Administrative Process
Georgetown University Law Center
March 12, 2014
Virginia Law Review, September 2014, Forthcoming
A rising tide in federalism scholarship and political discourse accords unmitigated praise to the notion of partnership between states and federal agencies. This Article reveals a more complicated picture. It begins by analyzing the penetrating but usually invisible role of “state interest groups” — lobbying associations of state officials — in shaping federal regulation. These groups have become the core vehicle for state involvement in federal administration, but surprisingly, their pervasive and critical role is rarely noted in the legal literature.
The Article shows that the pathologies of state interest groups reflect broader, latent tensions within the emerging project of administrative federalism. To develop this claim, the Article disaggregates a trio of benefits thought to flow from state involvement in federal administration — protecting state power, enhancing agency expertise, and maintaining a democratically accountable process — and shows that these benefits are unlikely to coincide. Instead, mechanisms designed to pursue state power as an end in itself thrive at the expense of expertise and accountability. The project of affording states a voice in the federal regulatory process must therefore begin to take account of tradeoffs among key goals, not just benefits. The Article closes by sketching best practices to help agencies, courts, and states balance the competing goals of administrative federalism.
Number of Pages in PDF File: 60
Keywords: administrative law, federalism, administrative federalism, interest groups, expertise, accountability, autonomyAccepted Paper Series
Date posted: March 15, 2014
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