Consent Procedures and American Federalism

69 Pages Posted: 6 Sep 2014 Last revised: 30 Mar 2015

See all articles by Bridget Fahey

Bridget Fahey

University of Chicago Law School

Date Written: August 15, 2014


Cooperative federalism programs and spending grants are like contracts. There is a federal offer and a state acceptance; there are terms and conditions, obligations and penalties. And there is a “meeting of the minds” — a moment when the states consent to a federal offer and the deal is done. But because the states are not monolithic actors — and many officials, acting through many different political processes, could conceivably speak for the state — the federal government establishes procedures that dictate which state actors may consent on the state’s behalf and how.

I call these “consent procedures.” These procedures are ubiquitous: they appear in every program and facilitate every grant that requires voluntary state participation. But they are not innocuous. Some require a particular state officer to serve as the state’s spokesperson. Others require the states to express their consent by proceeding through certain state-level processes. Still others automatically enroll the states and infer their ongoing consent from their failure to opt out. In Professors Richard Thaler and Cass Sunstein’s popular framing, Congress controls the “choice architecture” within which states make the decision to join or reject voluntary cooperative programs. Like “choice architecture,” consent procedures do more than operate as processes for registering state consent. Many also shape how states internally discuss, deliberate, and decide whether to join federal programs. They affect the formation as much as the expression of state consent.

This Article is the first to identify and critically analyze these procedures. It canvasses their many forms and features. It contextualizes them in the Court’s federalism jurisprudence and identifies potential constitutional concerns. It asks whether and under what conditions they are consistent with the core values of American federalism. And it describes ways that different stakeholders — Congress, federal agencies, and the states — can navigate them going forward. The federal government’s largely unnoticed ability to set consent procedures is a consequential feature of twenty-first-century federalism. Federal-state collaboration is increasingly Congress’s regulatory model of choice, and the terms of these collaborations will be the federalism fight of this new century. Consent procedures force to the forefront fundamental questions about the degree of autonomy, self-determination, and respect the states deserve when they are negotiating, defining, and agreeing upon the terms of their cooperative ventures — questions that become more pressing with each legislative session.

Keywords: Federalism, cooperative federalism, commandeering, coercion

Suggested Citation

Fahey, Bridget, Consent Procedures and American Federalism (August 15, 2014). Harvard Law Review, Vol. 128, No. 6, 2015, Available at SSRN:

Bridget Fahey (Contact Author)

University of Chicago Law School ( email )

1111 E 60th St
Chicago, IL 60637
United States

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