The State of American Federalism 2018–2019: Litigation, Partisan Polarization, and the Administrative Presidency

Abstract

Several themes characterize the state of American federalism. Increasing political polarization shapes preferences with respect to locating the vertical balance of power. To implement these preferences, the federal government is primarily relying on regulatory rollback and unilateral action. With Congress largely unable or unwilling to check the executive branch, states have pushed back on use of the tools of the administrative presidency through litigation. We address these themes through an analysis of voting and elections along with important policy developments from the previous year in the areas of immigration, health care, environmental policy, education, gun control, and criminal justice. We also review important federalism developments from the Supreme Court’s 2017 term.

Pandemics and Partisanship: Following Old Paths into Uncharted Territory

“…While asymmetries in federal-state relations are nothing new, scholars argue partisan conflicts in federalism have only grown more brutal in the aftermath of the 2016 elections and a switch of Republican and Democratic positions on federal versus state authorities (Goelzhauser & Konisky, 2019). Since taking office, Trump has pushed new policies onto states relating to immigration, climate change, and healthcare through administrative action that have gone mostly unchecked by Congressional Republicans and Republican Governors, even though the Republican Party has traditionally advocated for states’ rights.…”

The State of American Federalism 2019–2020: Polarized and Punitive Intergovernmental Relations

“…Writing in last year’s Annual Review, Goelzhauser and Konisky (2019) highlighted three key regulatory policy reversals in process at the EPA: greenhouse gas emissions limitations for coal-fired power plants, determining which U.S. waterways fall under federal jurisdiction, and fuel economy standards for cars and light-duty trucks. The EPA has now finalized action on these regulations, each of which has important federalism implications.…”

“…As such, the concept is regularly invoked to illuminate the study of federalism ( Jensen 2017 ; Nolette 2017 ; Volden 2017 ). Reflecting this prominence, Annual Review of American Federalism overview articles regularly emphasize polarization ( Goelzhauser and Konisky 2019 ; Krane 2004 ; Pickerill and Bowling 2014 ). More broadly, polarized federalism has taken its place among entrenched concepts such as coercive, cooperative, and dual federalism ( Conlan 2017 ; Grumbach 2018 ; Kincaid 2017 ).…”

Regulatory Rollbacks and Deepening Social Inequalities

“…As Sassen (2008) explains, “There is a novel segmentation inside the state apparatus, with a growing and increasingly privatized executive branch of government aligned with specific global actors, notwithstanding nationalist speeches, and a hollowing out of the legislature” (p. 80). Paralleling this dynamic has been the increased use of what has come to be called the “administrative presidency” in which presidents now have much greater influence over the policy-making process (Goelzhauser & Konisky, 2019). Indeed, as Bulman-Pozen (2019) notes, today “most significant policy-making comes from agency action rather than legislation” (p. 265).…”

“…Deregulation has previously been utilized by presidents to dismantle or roll back the policies and initiatives of previous administrations; however, Trump is employing a much larger arsenal of deregulatory tools than ever before. “The Trump administration has sought to achieve its policy goals primarily through executive orders and administrative rule-making and occasionally through issuance of waivers” (Goelzhauser & Konisky, 2019, p. 380), but it has also employed much more novel tactics such as “disapprovals under the Congressional Review Act, abeyances to pending litigation, and suspensions of final regulations” (Davis Noll & Revesz, 2019, p. 5). The administration has also relied heavily on rule delays as a strategy to dismantle policies created by the Obama administration, often doing so in ways that display “autocracy, impulsivity, and jerry-rigged reasoning” rather than compliance with administrative laws that govern regulatory (and deregulatory) rulemaking (Heinzerling, 2019, p. 14).…”