Chapter

The Role of the Political Branches: Negotiating Federalism

Erin Ryan

in Federalism and the Tug of War Within

Published in print December 2011 | ISBN: 9780199737987
Published online January 2012 | e-ISBN: 9780199918652 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199737987.003.0008
The Role of the Political Branches: Negotiating Federalism

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Chapter Eight summarizes the federalism safeguards debate, considers the role of negotiated governance, and highlights potential contributions from the academic negotiation literature. Most importantly, Chapter Eight introduces the phenomenon of federalism bargaining among all branches of government. Using the negotiation theorist’s definition, it broadly understands bargaining as “an iterative process of joint decision-making,” encompassing conventional political haggling, formalized methods of collaborative policymaking, and even more remote signaling processes by which state and federal actors negotiate consensus. Reverse-engineering the most successful examples would reveal the very considerations built into the Chapter Six balancing test—rendering bilateral bargaining by the political branches the functional ex ante equivalent of the ex post balancing analysis contemplated there. The federalism bargaining taxonomy charts opportunities for intergovernmental negotiation within various constitutional and statutory frameworks. It begins with the most familiar forms of negotiation used in lawmaking, including conventional negotiations over law enforcement, under the federal spending power, and for exceptions from otherwise applicable laws. It then considers more interesting forms of negotiated policymaking, including negotiated federal rulemaking with state and local stakeholders, federal statutes that share policy design with states, and intersystemic signaling negotiations, by which independently operating state and federal actors trade influence over the direction of evolving interjurisdictional policies. Examples include the 2008 Stimulus Bill, banking and financial services reform, criminal law enforcement, immigration, radioactive waste siting, offshore drilling, hydroelectric dam licensing, medical marijuana, climate governance, and the No Child Left Behind, Endangered Species, Clean Water, Clean Air, Real ID, Coastal Zone Management, and Medicaid Acts.

Keywords: negotiation; negotiated governance; negotiated federalism; federalism safeguards; negotiation theory; federalism bargaining; intergovernmental bargaining; spending power deals; negotiated rulemaking; intersystemic signaling; stimulus bill; financial services reform; criminal law enforcement; immigration law; radioactive waste siting; offshore drilling; hydroelectric dam licensing; medical marijuana; climate governance; no Child Left Behind Act; endangered Species Act; clean Water Act; stormwater; clean Air Act; real ID Act; coastal Zone Management Act; medicaid

Chapter.  22693 words. 

Subjects: Constitutional and Administrative Law

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