fbpx

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 27, 2015 at 12:03:33 pm

The Administrative State , it governs based on the inertia of a virtually defunct Federalist system, just barely alive.
It had to happen given the gradual encroachment of Washington, the powers of the purse, the inertia of most of the populace, and of course the cheers of a semi-literate media. We find ourselves looking at the current regime and wondering how much worse it will get.

read full comment
Image of john trainor
john trainor
on May 27, 2015 at 15:55:17 pm

As one of the many people who actually work for a living and who enjoy reading this blog, I say thank you for publishing this essay. I am finding it quite informative.

read full comment
Image of Scott Amorian
Scott Amorian
on May 29, 2015 at 12:32:56 pm

And as a representative of the other 47%, let me say Knock This Off -- and go do something taxable.

Thanks.

read full comment
Image of nobody.really
nobody.really
on May 30, 2015 at 13:22:34 pm

Yes, and do it quickly as my social Security check is a little late!

read full comment
Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.