Negotiating Federalism

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that pervades political discourse and judicial doctrine, the Article demonstrates that the boundary between state and federal power is negotiated on scales large and small, and on an ongoing basis. It is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap. The Article begins by situating its inquiry within the age-old federalism discourse about which branch can best safeguard the values that give federalism meaning: Congress, through political safeguards; the Supreme Court, by judicially enforceable constraints; or the Executive, through administrative process. Yet each school of thought considers only how the branches operate unilaterally—on one side of the state-federal line or the other—missing the important ways that each one also works bilaterally across that line to protect federalism values through various forms of negotiated governance. Because unilateral interpretive methods fail to establish clear boundaries at the margins of state and federal authority, regulators increasingly turn to bilateral intergovernmental bargaining to allocate contested authority and facilitate collaboration in uncertain federalism territory. Procedural constraints available within these negotiations can help bridge the interpretive gaps unresolved by more conventionally understood forms of interpretation