Coequal Federalism and Federal-State Agencies

Dividing authority between the federal government and thestates is central to the theory and practice of federalism.Division is the defining feature of dual federalism, whichdominates the U.S. Supreme Court’s federalismjurisprudence. Recent academic theories of federalismemphasize overlap and interaction but still assume thatfederal and state actors will work within separate institutions.Each approach can be problematic, yet assumptions ofseparation remain the bedrock of federalism. This Articlediscusses a different form of federalism: coequal federalism.Under coequal federalism, federal- and state-appointedofficials collaborate within a single agency that makesdecisions binding on the federal government and the states.This form of federalism exists only within obscure niches ofAmerican governance, and it is largely absent from theoreticaldiscussions. We argue that it should receive more extensiveattention and use.

We also explain how coequal federalism canfunction in practice, when it will offer a desirable alternativeto more traditional approaches, and why it is constitutional.