Introduction I. Partisan, Executive Federalism A. Environmental Protection B. Healthcare C. Immigration II. Preemption, Commandeering, and the Outsourcing of Coercion A. State Control over State Officials B. Horizontal Federalism: "Reciprocity" Without Reciprocity Conclusion Introduction
Contemporary political polarization has marginalized Congress in shaping domestic policy. Hyperpartisanship yields gridlock, particularly though not exclusively under conditions of divided government, and "gridlock makes alternative modes of policy making more attractive by shifting power away from Congress and toward the president and courts." (1) Accounts of the Obama and Trump Administrations are rife with claims of unilateral executive action, sometimes but not always checked by the federal judiciary.
These accounts tend to ignore the states. Although "the inability to get policy through Congress leads presidents to engage in unilateral action," (2) such action is often not so much truly unilateral as joined with state action. When presidents want to achieve durable policy change without Congress, they work together with ideologically aligned states. And as they do so, they are resisted by ideologically opposed states. In an age of polarization, states are at once principal implementers and leading opponents of federal executive policy. Many executive orders, rules, guidance documents, and enforcement decisions are thus better regarded as multilateral, not unilateral, undertakings.
Consider, for instance, one of the most salient and controversial issues in U.S. politics today: immigration. From seeking to strip funding from sanctuary jurisdictions, to rescinding Deferred Action for Childhood Arrivals (DACA), to increasing raids and arrests, the Trump Administration has acted unilaterally, insofar as this means without Congress. But such executive action has significantly involved the states. Red states have assisted the federal executive branch by mandating cooperation with U.S. Immigration and Customs Enforcement (ICE) and enforcing federal immigration laws more stringently within their borders. Blue states have been forceful opponents of President Trump's policies, suing to enjoin executive decisions and adopting their own laws to furnish protection for undocumented immigrants. These varied state policies mean that federal immigration enforcement looks different across the country as it is shaped by the interaction of federal executive and state policies. It has nearly nothing to do with Congress.
Drawing on immigration and other domestic policy areas, this Essay argues that we should shift much of our focus from the national legislature to the fifty states. The "without Congress" descriptor in the title is, of course, hyperbolic. Congress retains its powers and might be invigorated by bipartisan concerns about President Trump's autocratic demagoguery (although partisan loyalty is thus far eclipsing such concerns). Moreover, Article I of the U.S. Constitution looms over all domestic policymaking: Even when Congress does not enact a new law, the President and the states alike purport to be advancing prior legislative decisions, not flouting or ignoring them. But if we focus on Congress at the expense of the states, we miss critical dimensions of contemporary national policymaking.
After describing how states both effectuate and challenge federal executive policy, this Essay addresses novel threats to these state roles. Using immigration federalism as an example, I ask where preemption stops and commandeering begins when the federal government seeks to achieve its ends by removing state officials from the state's control. Looking to proposed firearms legislation, I consider federal efforts to displace state law by requiring states to defer to other states' policies. Such attempts to preempt allocations of authority within and among the states are inconsistent with core federalism principles. They raise particular concerns in an era of polarization when state policymaking capacity is critical to national governance.
Partisan, Executive Federalism
It is a commonplace among scholars of the separation of powers and administrative law that the President has eclipsed Congress in setting national policy. (3) Presidential dominance predates today's resurgent polarization, but it has been fueled by hyperpartisanship that impedes congressional action, integrates the President and the administrative apparatus, and renders the populace more impatient for presidential results. President Obama sloganized (and reinforced) a popular understanding when his "We Can't Wait" speech suggested that the American people should not have to "wait for an increasingly dysfunctional Congress to do its job." (4) Although President Trump currently enjoys a unified Republican government, he too has embraced unilateral executive action. Moreover, even when periods of unified government yield substantial legislation, the lengthy, complex statutes that almost invariably arise--such as those of the first two years of the Obama Administration (5)--demand significant policymaking by the executive branch with little hope of congressional revision. (6)
The same political polarization that has fueled executive unilateralism in Washington, D.C. has also more thoroughly integrated the states into such executive policymaking. Partisan ties extend across the state-federal divide, so state and federal officials readily recognize one another as allies, and states may furnish policymaking or enforcement capacity or democratic legitimacy that federal executive action lacks. Faced with a hostile Congress after his first two years in office, President Obama worked with a subset of states to advance some of his central policy initiatives, including climate change regulation and expanded healthcare coverage. The Trump Administration is now seeking to roll back President Obama's achievements and further its own agenda through state-dependent executive action. At the same time, today's national political parties mean that presidents find in statehouses not only allies but also fierce partisan opponents. And just as states are in a unique position to facilitate executive branch policymaking, they are also well situated to challenge federal executive action by filing lawsuits, adopting their own laws, withholding administrative cooperation, and more. Recent developments with respect to environmental regulation, healthcare, and immigration illustrate these dynamics of partisan, executive federalism. (7)
Despite a particular push at the beginning of the Obama Administration, Congress has not adopted legislation to address climate change. The 1970 Clean Air Act, most recently amended in 1990, remains the most pertinent federal law even though it was passed well before climate change was a national concern. (8) In response to congressional inaction, the Environmental Protection Agency (EPA) under President Obama adopted rules concerning greenhouse gas emissions, including the Clean Power Plan for power plants and the Tailpipe Rule for automobiles. (9) In part because these rules relied on the sometimes awkwardly fitting Clean Air Act, they were criticized as instances of executive branch overreach. But the rules also underscored the role of the states in such executive policymaking. Anticipating the Clean Power Plan, President Obama instructed the EPA to adopt a regulatory program that "directfly] engagefd] with States, as they will play a central role in establishing and implementing standards for existing power plants." (10) The resulting plan was "designed to build on and reinforce progress by states," including California and the northeastern participants in the Regional Greenhouse Gas Initiative (RGGI). (11) The Clean Power Plan, in turn, established different emissions targets for each state, based in part on past state policy choices, and gave states a degree of flexibility in determining how to meet those targets. (12)
The states fractured in predictable fashion. A group of Republican state attorneys general sued the EPA, while Democratic states--as well as some blue cities in red states--that were already pursuing their own emissions reduction strategies defended the plan. (13) The litigation is now being held in abeyance following the EPA's proposal to repeal the plan at President Trump's urging. (14) In the meantime, however, the EPA Administrator has cited the pending litigation to instruct states that they need not comply with the federal rule. (15) Governors of states that sued the EPA under President Obama appear happy to cooperate with the EPA in undermining the rule. (16) But those states that supported the federal rule are now preparing to assume a new role: suing the Administration to defend the Clean Power Plan. (17)
Likely more important, these states are also continuing to pursue the emissions reduction strategies contemplated by the Clean Power Plan. Beyond the efforts themselves (many of which, like those by the California Air Resources Board and RGGI, predate and inform the Clean Power Plan), state actors also describe themselves as "taking up the mantle of climate leadership." (18) The mantle is a familiar one; during the George W. Bush Administration, it was likewise Democratic states that pursued climate change regulation while the federal government declined to act. (19) These state actions and ensuing negotiations between the Obama Administration and state regulators laid groundwork for subsequent federal rules.
Although the regulation of greenhouse gas emissions remains an ongoing project, the key actors have stayed consistent for decades: The federal executive branch and the states, with the courts as sometimes referee, determine the contours of national policy. Congress remains on the sidelines.
With respect to healthcare, too, negotiations between the federal executive branch and the states...