Coequal Federalism and Federal-State Agencies

Abstract

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 predominates in the Supreme Court’s jurisprudence. Recent academic theories of federalism have emphasized overlap and interaction, but still with the assumption that federal and state actors will work within separate institutions. Each approach can be deeply problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism, which we label coequal federalism. Under coequal federalism, federal- and state-appointed officials work together within a single agency, and that single agency makes decisions that can bind the federal government and the states. This form of federalism exists, but only within obscure niches of American governance, and it is almost entirely absent from theoretical discussions. We argue that it should receive more extensive attention and use. More specifically, we explain how coequal federalism can function in practice, when it will offer a desirable alternative to more traditional federalism approaches, and why it is constitutional.