The Structural Safeguards of Federalism Bargaining

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:
The Structural Safeguards of Federalism Bargaining

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Chapter Nine explores the structural safeguards of bilateral balancing through the bargaining norms and media of exchange that accompany the trade in federalism entitlements. Federalism bargaining operates where each party wants something from the other, and negotiators trade on various aspects of the governing capacity available to them. These include legal authority, financing, resources and expertise to accomplish specific regulatory goals, release from inhibiting legal obligations that one side may hold over the other, and credit. Notably, the normative power of federalism itself forms important leverage at the bargaining table—often by clever statutory design—further constraining the results of negotiations in which participants are also motivated by other concerns. Chapter Nine includes compelling anecdotal testimony by primary source practitioners about participation, initiation, mechanics, leverage, relationships and consultation, underlying legal uncertainty, and available sources of trade in federalism bargaining. It carefully analyzes bargaining under the federal power of the purse, in spending power deals such as No Child Left Behind. Negotiated federalism is a project of bilateral balancing—incorporating wisdom from all levels of government about how to prioritize competing federalism values and exogenous considerations in each individual circumstance. Understanding the dynamics in federalism bargaining helps demonstrate the structural safeguards that bilateral balancing affords. Federalism bargaining ensures the active engagement of federalism goals through its very design—regardless of the competing policy concerns or the subjective considerations of participants—by balancing local and national interests in the substance of actual governance. Bilateral balancing thus affords protection for federalism on a structural level that surpasses the political safeguards available at a purely unilateral level. Like other federalism safeguards, however, the structural encouragement of federalism values is not infallible. Leverage dynamics, failed relationships, competitions for credit, and bargaining abuses can overcome them in some cases.

Keywords: intergovernmental bargaining; structural safeguards; bargaining norms; media of exchange; sources of trade; federalism entitlements; governing capacity; normative leverage; statutory design; anecdotal testimony; primary source practitioners; bargaining relationships; power of the purse; spending power bargaining; no Child Left Behind

Chapter.  12197 words. 

Subjects: Constitutional and Administrative Law

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