Federalism scholars have long been interested in the degree of collaboration or adversarialism that characterizes relationships between central and subnational governments. In the U.S. context, scholars have extensively examined concepts such as “cooperative” and “competitive” federalism, most often as a way to characterize legal and institutional relationships across jurisdictions.

As the U.S. transitioned from dual federalism to cooperative federalism in the first half of the twentieth century, state and federal governments increasingly shared functional responsibilities. In order to ensure cooperation, subnational governments often received financial inducements in exchange for assisting with federal policy implementation. Over time, however, the image of benign intergovernmental cooperation partially gave way to a more coercive federalism.

Conceptually, coercive federalism describes federal efforts to bend subnational governments to its will through financial withholdings and regulatory initiatives. Punitive federalism is characterized by the federal government’s use of threats and punishment to suppress state and local actions that run contrary to its policy preferences.

Federal-state conflict is, of course, nothing new. The federal government and states are in some respects perpetually struggling over relative power and autonomy. In contemporary politics, this conflict frequently emerges in policy design debates (e.g., health insurance regulation), the content of federal regulations that require state policy changes (e.g., pollution regulation), and rules for disbursing federal entitlements (e.g., social assistance program eligibility). Increasing multistate litigation is one illustration of increased federal-state discord.

During the Trump administration’s first few years, the federal government’s relations with some states has been tense, and there has been an increasing tendency for federal agencies to threaten or punish states that adopt policies conflicting with the administration’s agenda.

In recent years, policy differences have generated a more visceral and vindictive type of response, where the federal government, and at times President Trump himself, retaliates against states for decisions and policies that conflict with the administration’s preferences. This retaliation involves the federal government using its formal powers to punish states. We refer to this retaliatory behavior as “punitive federalism.”

Punitive federalism has perhaps been most evident in environmental policy. This past year, the clearest example pertains to a dispute between the Environmental Protection Agency (EPA) and California, which began with a policy difference over an August 2018 agency proposal to weaken an Obama-era rule strengthening fuel economy and greenhouse gas emission standards for cars and light-duty trucks. California and several automakers thought the weakening went too far, but after negotiations over the proposed standards broke down, California reached an agreement with four automakers in which the companies voluntarily committed to meet a higher standard. A few months later, the EPA responded with several measures seemingly motivated by retribution, including an antitrust investigation into the automakers that sided with California.

As a second example, just two days later, the U.S. EPA sent another letter to California, this time questioning the state’s efforts to effectively implement the Clean Water Act (CWA) and Safe Drinking Water Act. In yet another case, the DOJ filed a lawsuit against California’s greenhouse gas cap and trade emissions program, asserting that it was unlawful because it included Quebec.

Outside of environmental policy, the Trump administration’s withholding of grant funds to “sanctuary” jurisdictions also exemplifies punitive federalism. Furthermore, the Trump administration’s notice of violation to California for mandating private health insurers to cover abortion procedures may be another example of punitive federalism. Furthermore, many states and the Trump administration continued efforts to challenge the ACA’s legality and undermine its reach through administrative measures such as Medicaid eligibility requirement waivers.

Concerns about punitive federalism also swirled with suggestions that the Trump administration made pandemic response decisions based in part on political allegiance. Punitive federalism may have also motivated other disaster relief positions.

The COVID-19 pandemic will be 2020’s defining federalism event. For the first time in U.S. history, a state of emergency was simultaneously in every state, and the economic downturn will likely have implications for years to come. Government responses have been varied, reflecting decentralized power, differential attention to science, disproportionate impact on marginalized groups, and mixed perceptions of purported tradeoffs between economic well-being and public health. As the crisis unfolds, important federalism concepts are on display, including cooperation and conflict through vertical and horizontal relations. Moreover, the pandemic has reinforced the themes of polarization and punitiveness governing contemporary intergovernmental conflict.


Read the entire article in Publius, The Journal of Federalism (free access):
Greg Goelzhauser and DavidM. Konisky. 2020. The State of American Federalism 2019–2020: Polarized and Punitive Intergovernmental Relations. Publius: 50(3): 311-343 (doi:10.1093/publius/pjaa021).

By No Comment September 22, 2020