Cooperative Subfederalism

59 Pages Posted: 18 Nov 2017 Last revised: 22 Jan 2018

Dave Owen

University of California - Hastings College of the Law

Date Written: November 15, 2017

Abstract

Cooperative federalism is one of the most important innovations of American governance. In a cooperative federalism system, the federal government delegates to states the authority to implement a federally-created program, and those state implementing actions are subject to federal administrative oversight and mandatory review. This basic governance model now pervades federal-state relations and has received enormous amounts of academic attention.

This article considers whether analogous arrangements make sense for state and local governments. Such arrangements do exist, but they are not nearly as prevalent as their federal-state counterparts, and they have received little attention from scholars. Yet many of the theoretical arguments in favor of traditional cooperative federalism extend to relationships between state and local government. And a review of three long-established state-local programs—land use regulation in Oregon and Florida and air quality regulation in California—demonstrates that these cooperative subfederalism arrangements can succeed. That success never comes easily, and it depends upon a highly interactive governance model; the divided spheres of traditional federalism theory hold little promise in this realm. Nevertheless, cooperative subfederalism offers a promising alternative to more traditional ways of structuring state-local relationships.

Beyond supporting changes in state and local governance, this study also has implications for traditional federalism doctrine. Most importantly, it undercuts the tendency, which is particularly pronounced in Supreme Court decisions, to assume that state government subsumes the benefits of localism. It also corroborates and extends recent scholarly work emphasizing federalism as a system of governmental integration, and it undermines the Court’s and some commentators’ emphasis on federalism as a system of divided and limited governmental authority.

Keywords: federalism, cooperative federalism, state, local, land use, air quality, groundwater

Suggested Citation

Owen, Dave, Cooperative Subfederalism (November 15, 2017). UC Hastings Research Paper No. 258. Available at SSRN: https://ssrn.com/abstract=3071907 or http://dx.doi.org/10.2139/ssrn.3071907

Dave Owen (Contact Author)

University of California - Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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