Executive Federalism Comes to America

This Article proposes a different way of thinking about contemporary American governance, looking to an established foreign practice. Executive federalism—“processes of intergovernmental negotiation that are dominated by the executives of the different governments within the federal system”—is pervasive in parliamentary federations, such as Canada, Australia, and the European Union. Given the American separation of powers arrangement, executive federalism has been thought absent, even “impossible,” in the United States. But the partisan dynamics that have gridlocked Congress and empowered both federal and state executives have generated a distinctive American variant.

Viewing American law and politics through the lens of executive federalism brings four key features into focus. First, executives have become dominant actors at both the state and federal levels. They formulate policy and manage intergovernmental relations. Although executive negotiations have shaped American federalism at least since the New Deal, Congress once superintended them. Today, from healthcare to marijuana to climate change, federal and state executives negotiate without Congress. Second, there is a substantial degree of mutuality among these executives, much more than is suggested by the federal government’s legal supremacy. Federal and state actors turn to state law as well as federal law to further their agendas; sometimes this amplifies conflict, but it also enables officials to find paths to compromise. Third, national policy frequently comes to look different across the states as a result of executive negotiations. Some states more strongly press a position shared by the federal executive, while others offer competing views. Finally, horizontal relationships among the states are critical in setting national policy, as the federal executive builds on interstate agreements and reshapes them in turn.

In charting the emergence of executive federalism in the United States, this Article seeks to identify a distinctive approach to national policymaking and to offer a qualified defense of the phenomenon.

Two Concepts of Discrimination

A philosophical battle is being waged for the soul of equal protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern equal protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but they can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require the Supreme Court to choose. 

“Spiritual But Not Religious”: Rethinking the Legal Definition of Religion

Through the statutory mechanisms of RFRA and RLUIPA, Free Exercise jurisprudence has expanded the scope of religious protection. In the absence of a clear legal definition of religion, however, this protection has an unknown and biased reach. In particular, courts and legal scholars embody a misunderstanding of a burgeoning group of Americans who identify as “spiritual but not religious,” excluding them from religious protection. This Note uses a recent case, which dismissed as nonreligious the beliefs of a plaintiff whose beliefs are paradigmatic of this growing cohort, to analyze how the law defines religion. It argues that while such belief systems reject the institutional characteristics of organized religion, they are sufficiently analogous to religious belief systems to deserve the same legal protection.