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Cooperative Federalism and the Growth of the Administrative State

Does modern federalism work the way the Founders envisioned? Professor Michael Greve distinguishes between the dual federalism of the Founders and the cooperative federalism that exists now. Rather than the states and federal governments having separate powers, many state programs are now run on behalf of federal agencies that provide money and dictate specific policy agendas. https://youtube.com/watch?v=FQQytu-JzSc


Federalism has undergone many important changes in the course of our history, which was to be expected. But it's not gone away and it never will. States are, so to speak, the default mode of American politics - they remain immensely important. What has changed is the nature of Federalism. One can distinguish a dual federalism from the cooperative federalism that we have now. A dual federalism, what was meant, to describe the logic of enumerated limited federal powers, the residual powers, police powers of the states. For much of the 19th century, people insisted that those spheres had to be mutually exclusive. So the feds had to stay in their lane and the states had to stay in their lane and never the twain shall meet. That arrangement broke down beginning in the late 19th century and early 20th century. What happened in the New Deal Era after Progressive erosion, is something very close to the opposite end of the spectrum - a gradual expansion of federal powers, the scope of, Congress's powers, for example, and under the Commerce Clause. That was one piece of the puzzle. But at the same time, also a massive expansion of state powers during that same period in the Supreme Court's jurisprudence. What you end up with, if both federal and state power simultaneously expand is a situation where the powers are not mutually exclusive any longer, where they overlap over basically, the entire course of domestic American politics. So the powers now run concurrent and they're no longer in separate spheres. And what that means is you have to find some arrangement that allows the states and the federal government to cooperate in these spheres where their powers overlap. And that is what is commonly called cooperative federalism. Most of the governmental programs we all love and adore and cherish are cooperative programs. This is true of regulatory programs from the Clean Air Act to the Clean Water Act. All of those are jointly administered, and it's also true of various so-called conditional funding statutes as say, the federal government puts money on the table and says, “you dear state or local government, you will get this money, if you implement the following, the following programs along the lines that we suggest.” There are many more than 1200 programs of that nature. However, cooperative federalism is inherently what the founders feared. It is government over governments, right? So the Medicaid statute doesn't govern citizens directly. It governs the states and state agencies that administer the program, the same as true of education programs and a wide range of other programs, the Clean Air Act and the Clean Water Act contain prohibitions against private parties, concerning certain forms of pollution that imposes standards on them. But most of that is administered by state governments as well. The EPA just doesn't have the capacity to do that. What that does is it blurs the line of lines of accountability when these programs begin to fail, you have no idea who is to blame. And the federal government and the states will blame one another. The states will say, you didn't send us enough money. The federal government will say you shirked on your obligations under the statute. And none of us is any the wiser. Maybe there's no other way of running the system but it's important to realize that there is a price to pay.

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