The first year of Donald J. Trump's presidency has produced numerous heated controversies that implicate two central constitutional themes of U.S. politics: federalism and the separation of powers. The Trump administration's immigration policies regarding travel from predominantly Muslim countries, "sanctuary" jurisdictions, and the suspension of the Obama administration's "Dreamers" program have all been met with vehement resistance and litigation, often led by Democratic state attorneys general. (1) The Environmental Protection Agency's (EPA) initiatives to rescind, revoke, or rewrite a raft of environmental regulations have likewise generated intense state opposition. (2) And state officials have sharply protested against what they view as the administration's deliberate efforts to un dermine the Patient Protection and Affordable Care Act (ACA). (3)
All those controversies have been shaped to some extent by President Trump's idiosyncratic style of leadership and communication. But the controversies also signal the rising dominance of the executive branch and especially the White House, rather than Congress, over federalism relations. And all have played out under conditions of intense partisan polarization. Those joint tendencies--the rise of executive government, and partisan polarization--have driven federalism's development for well over three decades.
Scholars broadly agree that an "executive federalism" has replaced the legislative, "cooperative" federalism of the post-New Deal era. (4) In a presidential system, they observe, partisan polarization is naturally conducive to executive government. (5) Institutional mechanisms that generate cooperation and exchange in a system of divided powers break down, and a deadlocked, "dysfunctional" legislature yields power to the executive. (6) And because most domestic policies are embedded in intergovernmental statutes and arrangements, polarization and the attendant rise of executive government have naturally produced an executive-dominated federalism. (7) Its contours are shaped by the EPA, the Department of Health and Human Services (HHS), and the Department of Education; by agencies that until recently had little if any truck with federalism, such as the Internal Revenue Service; (8) by nominally private, quasi-governmental agencies; (9) and through legal settlements between federal regulators, state prosecutors, and private enterprises. (10) These law- and policymaking initiatives have taken decidedly "unorthodox" forms. (11) Federal agencies exercise broad waiver authority, generate entire federalism programs from whole cloth, commandeer vast revenue streams to state and local governments at their discretion, and endeavor to entice or cajole ornery states into some form of cooperation with federal programs and ambitions. (12) Key federalism decisions are made not by bureaucrats in the context of a routinized regulatory process but by high-level political officials, acting in close concert with the White House. (13)
For the most part, the executive federalism literature has stressed the potent effects of partisan polarization at the national level. (14) This Essay complements the picture by examining the effects of partisan, ideological polarization at the state level. "Red" and "blue" states divide sharply over highly salient questions of public policy, and they act as blocs. Concurrently, the ideological divide between the national executive and the "dissident" state bloc has also widened. Partisan, ideological polarization in this geographic, state-level dimension is a form of political sectionalism--that is, a political cleavage that is too deep to be overcome through ordinary, transactional politics and bargaining. (15) U.S. federalism has been "sectional" in this sense for most of our history. What is new is the interplay with an executive-dominated national government. The conjunction has produced a distinctive institutional pattern of federal-state relations. It has a distinctive political economy, and it operates largely without meaningful legal and especially constitutional constraints.
Part I of the Essay places our contemporary, sectional, executive federalism in historical perspective. Part II describes some of its central features: asymmetric treatment of individual states, policymaking at the outer limits of statutory and constitutional law, and litigiousness. Part III sketches contemporary federalism's political economy. Very roughly: the blue states' quasi-European business model of expansive (and expensive) social and environmental protections is difficult to sustain. So long as capital and labor can migrate to hospitable states, the blue-state model requires high federal fiscal transfers and, moreover, an extensive system of federal regulation that raises the red-state rivals' cost and curtails their competitive and comparative advantages. This conflict has shaped federalism in highly salient policy arenas, and it has reinforced the executive's dominance over federalism relations. Part IV notes the dearth of effective legal and constitutional controls: The Supreme Court's separation of powers and federalism jurisprudence is seriously mismatched with current institutional realities.
The Conclusion briefly speculates about sectional, executive federalism's prospects and possibilities. On a cheerful view, federalism's contentiousness suggests that our politics, far from collapsing into a centralized autocracy, remain vibrant and that states--unlike, perhaps, Congress and arguably the judiciary--remain an effective check on the executive. (16) On a more pessimistic note, federalism's dynamics signal an acute danger of institutional corruption--not so much petty quid pro quo bargains, but a pattern that the Founders associated with the term "corruption": the systematic mobilization of the governmental machinery for purposes of partisan gain and oppression.
States of Polarization
Over the past decades, states have followed the national pattern of increasing partisan and ideological polarization. (17) By and large, increased partisan homogeneity within states has been accompanied by increased heterogeneity across and among states. The number of states under one-party control has risen markedly: in over two-thirds of the states, one party governs the executive and both houses of the legislature. (18) Meanwhile, the ideological distance between red and blue states, and between "dissident" state and the federal government, has increased sharply on many key policy questions. Red and blue states have formed and act as stable blocs over a wide range of issues, many of them of near-existential interest to states on both sides. Controversies over environmental and energy policy, immigration, the ACA, and tax policy are examples. (19)
Political scientists have described this form of geographic polarization as "sectionalism." (20) In varying shapes and with varying intensity, sectionalism has been the rule in U.S. politics, and it has powerfully shaped the contours of our federalism. A very brief survey helps to put its present-day, uniquely executive manifestation in context.
Throughout the nineteenth century, U.S. politics were intensely sectional. The central cleavage, of course, was slavery and, after the Civil War, its enduring legacy. Sectional politics were then conducive to a "dual" federalism, characterized by limited federal authority and a low level of fiscal transfers. For example, the Supreme Court--even in it most nationalist moments--never embraced a federal commerce power that would have entailed federal authority to regulate slavery within the states. (21) Similarly, fiscal transfers and other "cooperative" federalism arrangements could come about only rarely, due to intractable disagreements over the distribution of federal spending. (22)
The Progressive and pre-New Deal Era--like ours, a time of high partisan polarization and sectional politics--produced some cooperative federalism programs through federal statutes. (23) Such statutes were enacted in domains where states' interests were homogeneous (for example, federal aid for road construction) (24) or where Congress was able to compartmentalize political authority along state lines, as with liquor regulation. (25) But Congress steered clear of enacting statutes that would have threatened the racial caste structure in the South. (26) Only the massive dislocations and the unusually high partisan consensus of the New Deal broke the sectional alignments and generated stable, broad-scale patterns of cooperative federalism. (27)
Initially, that emergent federalism had a distinctly executive hue. The emergency programs of the early New Deal years conferred virtually unlimited spending discretion on the executive, and President Roosevelt's confidants (led by Harry Hopkins) roamed the country and sought to entice local politicians to adopt relief programs on a one-off basis. (28) Cooperative federal entitlement programs--so called because they created legislative entitlements for the states--were enacted when and because Congress, the executive, and state and local politicians all shared an interest in greater regularity. (29) While those programs--for example, the 1935 Social Security Act--left a great deal to administrative discretion, they also established general funding formulas and ensured legislative budget and program control through appropriations as well as continuous committee oversight. (30)
The post-New Deal, post-World War II era was a time of high partisan consensus, chiefly because Southern whites ended up in the wrong party. (31) The sectional cleavage over race, however, remained. There could be no cooperative federalism in education or healthcare because for the South, there was nothing to negotiate. It took the Great Society, another episode of convulsion and single-party dominance, to break that pattern. The cooperative achievements of that...