On Monday, April 20, 2015, the Rose Institute of State and Local Government hosted Michael Greve for a discussion on federalism. Greve is a professor at George Mason University School of Law, where he teaches constitutional law, and recently published The Upside Down Constitution. His visit began with a reception at the Rose Institute with students, and then he moved to address an engaged audience at the Marian Miner Cook Athenaeum, where he gave a talk titled “The Rise of Executive Federalism.”
In his Athenaeum address, Greve began by noting a recent paradox within American government between federalism and the rule of law. Generally, they are considered consistent with one another, but Greve argues that this is not always the case. Under current conditions, they have become incompatible, with extralegal improvisation the only way to sustain the political system. His central argument, simple yet with far-reaching consequences, is that cooperative federalism is failing.
Whereas dual federalism created separate spheres of state and federal power, cooperative federalism involves their concurrent use so that both federal and state governments may govern the same issue. Greve argues this has led to rather awful outcomes in two respects. First, it creates large inefficiencies in government programs, citing education as an example which has seen funding triple in real dollars while achievements have remained flat. Second, it tends to expand government at all levels, especially at the state and local level. In order to receive federal funding, for example, state and local governments are more willing to raise taxes, far more than they would independently.
After several decades, Greve argues, this system is beginning to fall apart. Government programs are irrationally constructed to use federal funding and state bureaucracies, a historical accident. Moreover, these programs are predicated on having consistent increases in cash infusions over time, which seem to be slowing down. Where this leads, however, remains unclear. Greve advocates for a return to dual federalism, but a task that reorganizes all government bureaucracies is not an easy one.