Some states welcome these escapades, sometimes; others fight back. A “National Federalism” literature (emanating from the New Haven metropolitan area) says, no. For one thing, Executive Federalism is debt-financed federalism (which helps to explain why we are now extracting the needed funds for the programs and even just running the federal agencies from private entities). Admittedly that’s not a state but as goes Puerto Rico, so goes Illinois, and in its trail any other state that relies on federal transfers to support a failed business model. Executive federalism happens in the shadow of the law, and sometimes the bright sunshine of patent illegality.
States can shirk, and they can participate in the regulatory process. And the federal courts have nothing consequential to say about it. Even when he had a legal basis for his actions he declined to invoke it because that would suggest he’d do the same thing in the next case, and there goes the leverage.
Over time the federal government’s ambitions have become more local: land use, education curricula and services, etc.
At first impression that looks like an expansion of Congress’s power—but it really isn’t.
But the trend is secular, and robust to partisan politics.
(It began under the Reagan administration and has accelerated since.) Herewith, six features of Executive Federalism: . The key decisions are made by high-level political appointees, usually in close cooperation with the White House. isn’t rulemaking by bureaucrats and administrative regularity; it’s political.
The trend to “Presidential Administration” cuts across a wide range of issues (think net neutrality); but again it is particularly pronounced in the federalism arena.
Deferred action for undocumented aliens wasn’t some bureaucrat’s idea; it was the President’s.
Medicaid, education, welfare, and other programs work that way .
Executive federalism is highly asymmetric: federal program requirements are worked out or waived for individual states, and the differences are huge. There are fifty different Medicaid programs, and they have only one thing in common: not one of them has anything to do with the statute. Executive federalism works through dealmaking, not rulemaking.