Coequal Federalism and Federal-State Agencies

57 Pages Posted: 19 May 2020 Last revised: 16 Jun 2020

See all articles by Dave Owen

Dave Owen

UC Law, San Francisco

Hannah Jacobs Wiseman

Penn State Law – University Park

Date Written: February 3, 2020

Abstract

Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which predominates in the Supreme Court’s jurisprudence. Recent academic theories of federalism have emphasized overlap and interaction, but still with the assumption that federal and state actors will work within separate institutions. Each approach can be deeply problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism, which we label coequal federalism. Under coequal federalism, federal- and state-appointed officials work together within a single agency, and that single agency makes decisions that can bind the federal government and the states. This form of federalism exists, but only within obscure niches of American governance, and it is almost entirely absent from theoretical discussions. We argue that it should receive more extensive attention and use. More specifically, we explain how coequal federalism can function in practice, when it will offer a desirable alternative to more traditional federalism approaches, and why it is constitutional.

Keywords: Federalism, Agency, Compact Clause, Administrative Law, Energy

Suggested Citation

Owen, Dave and Wiseman, Hannah Jacobs, Coequal Federalism and Federal-State Agencies (February 3, 2020). Georgia Law Review, Forthcoming, UC Hastings Research Paper No. 387, Available at SSRN: https://ssrn.com/abstract=3583205 or http://dx.doi.org/10.2139/ssrn.3583205

Dave Owen (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Hannah Jacobs Wiseman

Penn State Law – University Park ( email )

Lewis Katz Building
University Park, PA 16802
United States

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