There’s been a lot of talk that our federalism might come to look like the EU, with Illinois starring in the role of Greece or Italy. However, the institutional differences are far too great for meaningful comparison. For example, Chancellor Merkel can depose the Italian Prime Minister with a phone call; our Constitution does not give the President, the Congress, or for that matter the National Governors Association any such agency in the affairs of a member-state. For another example, the EU (outside the egregious but fairly small Common Agricultural Policy and a few other slush funds) isn’t a transfer union. Our federalism is or rather has become that sort of union. That doesn’t mean we have a smaller problem than the EU; it just means that we have a different problem. For purposes of comparison and instruction, you want to look at a federal system that shares our problem. Come visit Argentina: you’ll see the future, and it doesn’t work. Read more
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.
