Dave Owen and Hannah Jacobs Wiseman,
Coequal Federalism and Federal-State Agencies, 55
Ga. L. Rev.
Available at: https://repository.uchastings.edu/faculty_scholarship/1794
Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which dominates the U.S. Supreme Court’s federalism jurisprudence. Recent academic theories of federalism emphasize overlap and interaction but still assume that federal and state actors will work within separate institutions. Each approach can be problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism: coequal federalism. Under coequal federalism, federal- and state-appointed officials collaborate within a single agency that makes decisions binding on the federal government and the states. This form of federalism exists only within obscure niches of American governance, and it is largely absent from theoretical discussions. We argue that it should receive more extensive attention and use. We also explain how coequal federalism can function in practice, when it will offer a desirable alternative to more traditional approaches, and why it is constitutional.
Georgia Law Review