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- Title
Coordinated Rulemaking and Cooperative Federalism's Administrative Law.
- Authors
FAHEY, BRIDGET A.
- Abstract
"Cooperative federalism" is not just a model of federalism; it is a model of administration. Fromhealth care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer. The Article begins to elaborate cooperative federalism's unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show that inside cooperative programs, federal and state agencies jointly promulgate binding legislative rules through a cross-governmental process I call "coordinated rulemaking." Because it crisscrosses governmental boundaries, this novel formof rulemaking has a legal logic, process, and mode of codification that diverges fromthe notice-and-comment rulemakingmodel so scrutinized within the federal administrative state. Afer documenting the use of coordinated rulemaking in some of our largest and most im- portant cooperative regulatory programs--including Medicaid, the Clean Air Act, public educa- tion, highway construction, and national-security surveillance, among many others--I argue that these rich practices resist the standard heuristics used to conceptualize the administrative relationship between the federal government and states within cooperative programs. In their place, I develop an alternative conception of the administrative scafolding in cooperative federalism programs. Finally, I sketch out some of the puzzles and promises of coordinated rulemaking--its implications for black-letter administrative doctrines, including Chevron deference, arbitrary-and-capricious review, and the like--and, by setting the practice I document here in theoretical frame, asking what it reveals about how federalism reshapes the legal architecture of administrative law when our governments pursue regulatory projects together.
- Subjects
COOPERATIVE federalism; INTERSTATE agreements; ADMINISTRATIVE law; CLEAN Air Act (U.S.); FEDERAL government
- Publication
Yale Law Journal, 2023, Vol 132, Issue 5, p1320
- ISSN
0044-0094
- Publication type
Article