Ghostwriting Federalism

Abstract

Notwithstanding the Supreme Court’s admonition that federal authorities should not “unduly interfere” with state government, federal agencies frequently write state laws. They draft model state acts. They comment on pending state bills. And behind the scenes, they quietly advise state legislators and governors’ offices on proposed state legislation. Some agencies dedicate special divisions to work with states and track their legislation. Others work informally with state policymakers in overlapping areas of regulation and enforcement. Agencies have done this since the earliest days of our modern administrative state. Yet this function is mostly overlooked in canonical accounts of agencies’ work and the vast literature on administrative law.

This Article systematically maps this vital but unexamined aspect of the federal administrative state. Drawing on interviews and historical accounts from dozens of agencies, this Article charts how federal agencies shape state legislation and assesses the implications for administrative law and federalism. Federal-agency involvement in state legislation offers an important avenue for regulatory policymaking, but also one that bypasses the traditional constraints of administrative process, judicial review, anti-lobbying laws, and presidential oversight that apply to administrative agencies. Such involvement thus could prompt concerns about regulatory capture, partisanship, and drift inside the administrative state. Evidence from this Article suggests, however, that these concerns may be mitigated—and the benefits of federal-agency collaboration enhanced—when agencies adopt transparent and accountable practices that some federal agencies already observe.

Understanding agencies’ role in the statehouse also complicates the traditional account of state and federal government in our federalist system. The conventional account of American federalism assumes that when federal agencies act, they make uniform policies for the nation and that states separately make policies for their local constituencies, thereby providing testing grounds for programs that other states can adopt. The federal agencies described here flip that script. They participate in state policymaking while building state expertise and power; they develop subnational rather than uniform nationwide policies; and they transmit popular state legislation downward into the states and across them. Even as the Supreme Court has restricted agency demands on states in the name of federalism, this Article shows that federal agencies can use statehouses to further the values of federalism—among them, enhanced accountability, greater deliberation, and productive experimentation in the way we govern ourselves.

Keywords: administrative law, federalism, separation of powers, state legislation