Scholarship

Scholarly preoccupation with presidential power has left another story of executive power largely untold: the rise of American governors. This Article identifies and evaluates the modern regime of gubernatorial administration. It uncovers how and why governors have gained authority, including powers that Presidents lack, and describes the limited checks on gubernatorial power from state-level institutions. It shows that centralized gubernatorial power not only has significant policy consequences, but also provides a new perspective on several contemporary debates.

This Article challenges the prevailing, bifurcated approach to voting and spending law. Its central thesis is that the law's disparate treatment of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process. Conceiving of them as two aspects of a broader right to participate -- a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC -- offers a principled basis to harmonize voting and spending law and reorient election law discourse.

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as “administrative federalism,” now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking.

A rising tide in federalism scholarship and political discourse accords unmitigated praise to the notion of partnership between states and federal agencies. This Article reveals a more complicated picture. It begins by analyzing the penetrating but usually invisible role of “state interest groups” — lobbying associations of state officials — in shaping federal regulation. These groups have become the core vehicle for state involvement in federal administration, but surprisingly, their pervasive and critical role is rarely noted in the legal literature.