Federalism, Upside-Down and Executive

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject.

The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off negotiations between states and political operatives inside the executive branch. Congress has nothing to do with it beyond writing checks, and administrative regularity goes by the boards. It’s all waivers and threats and “do we have a deal for you.”

This isn’t just the Obama administration. Executive federalism has been on the ascent for some time, and it’s easy to see why. “Cooperative” federalism programs that envision the governance of college students’ dating habits, local mud puddles, and middle school curricula can’t be overseen by Congress. They require a branch that’s in business 24/7, year-round. That’s how cooperative federalism becomes executive. If the trend has accelerated in recent years, that’s because the states have become more ornery, federal ambitions have become even wilder, and Congress has shown no inclination to update long-obsolete statutes. So executive federalism becomes a bargaining process outside even the shadow of a statute.

Some initial thoughts on the subject (largely excerpted from the Mercatus essay) are here.  More in coming months.



When Individual Rights Become Group Rights

The Supreme Court has replaced the Constitution’s principle of the individual’s right to vote with a right to equal representation for minority groups. This post investigates the central moments of this shift in doctrine and practice.