From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism
Bulman-Pozen, Jessica, The Yale Law Journal
Edward Corwin famously announced the passing of dual federalism in February of 1950. In the wake of the Great Depression, the New Deal, and two world wars, he argued that the federal system had "shifted base in the direction of a consolidated national power" and wondered whether "the constituent States of the System [could] be saved for any useful purpose." (1)
Federalism scholars have offered a variety of answers to his question. For some, the imperative is to revive dual federalism, a commitment to judicially enforced separate spheres of state and federal authority. (2) But for many more, Corwin's words have been read not as a eulogy but as a challenge, a call to consider how federalism might survive without clearly delineated domains of state and federal authority. If the "standard view held by students of law and politics is that the history of American federalism has been an inexorable series of moves in which national power has displaced state and local power," (3) many of the contrarians who compose the federalism academy have found within the very moves taken to aggrandize national power-in particular, the rise of the administrative state and the rise of national political parties-the keys to federalism's longevity. Dual federalism made way for process federalism, (4) which has in turn recast administration and party politics as channels through which state power is preserved. The administrative state and the two major political parties have been reimagined as guardians, rather than slayers, of American federalism.
This embrace of administration and politics has been productive but incomplete. Even as the literature has ceased to insist on judicially enforced, clearly defined spheres of state and federal authority, it has clung to a dualist vision of state-federal separation. Dual federalism may be dead, but its focus on autonomous state governance and distinctive state interests--on separation--lives on. What has changed is simply the means of protecting these ends. In our leading contemporary federalism narratives, integration paradoxically yields separation: state actors use their connections to federal politicians and administrators to safeguard state autonomy and to advance particularistic state interests.
But integration yields integration, not separation. Taking administration and partisanship seriously means we must acknowledge a certain incoherence to invoking state governance and interests in opposition to federal governance and interests. Instead, state and federal governance and interests are deeply intertwined and, in many cases, indistinguishable. The state and federal governments together produce national governance in the service of various national interests.
First, in our most substantial federal statutory schemes, states act as co-administrators and even co-legislatures, complementing and competing with the President and Congress. Insisting on an autonomous realm of state action neglects this important aspect of today's federalism and also leads us to overlook how states affect the federal government. As administrators and authors of federal law, states alter the roles and relationships of federal political and bureaucratic actors and amplify competition across and within the branches of the federal government. We cannot understand today's federalism without considering the separation of powers, and we likewise cannot understand the separation of powers without considering federalism. Our federal government is really a federalist government.
Second, and extending beyond state administration of federal law, states participate in political controversies that are national in scope. They serve as staging grounds for competition between our two major parties and for a variety of networked interests seeking to translate political commitments into law. Insisting on distinctive state interests neglects this important aspect of today's federalism and also leads us to overlook how federalism facilitates national political conflict. …