Negotiating Federalism Past the Zero Sum Game

Abstract

Countless instances of intergovernmental bargaining offer a means of understanding the relationship between state and federal power that differs from the stylized model of “zero-sum” federalism that has come to dominate political discourse. The zero-sum model sees winner-takes-all jurisdictional competition between the federal and state governments for power, emphasizing sovereign antagonism within the federal system. Yet real-world interjurisdictional governance show that the boundary between state and federal authority is really an ongoing project of negotiation, taking place on levels both large and small.

Reconceptualizing the relationship between state and federal power as one heavily mediated by negotiation reveals just how far federalism practice has departed from the zero-sum rhetoric. Better still, it offers hope for moving beyond the more paralyzing features of the federalism discourse, and toward the kinds of good governance that Americans of all political stripes hope for.

This invited short essay, drawing from previously published work in Federalism and the Tug of War Within (Oxford, 2012) (http://ssrn.com/abstract=1991612), and Negotiating Federalism, 52 B.C. L. Rev. 1 (2011) (http://ssrn.com/abstract=1583132), appears in an issue of Administrative and Regulatory Law (Vol. 38, No. 1) devoted to discussion of the Spending Power after the Supreme Court's 2012 review of the Affordable Care Act. The essay explores various ways that state and federal actors negotiate within regulatory arenas of jurisdictional overlap, and includes an inset piece analyzing the effects of the Supreme Court's decision on spending power bargaining.

Keywords: federalism, negotiation, intergovernmental bargaining, spending power, Sebelius, Affordable Care Act