Publication Date
2025
Publication Title
Public Law & Legal Theory
Abstract
It’s been called the “oldest question” of American constitutional law: How does the national government deal with its sovereign subnational states? Judges and scholars have tried to capture this dynamic via theories of “dual federalism,” “process federalism,” “cooperative federalism,” or “federalism by integration.” But all these models suddenly seem to have superseded, and even perhaps rendered obsolete, by an unexpected step-change in the intensity of federal-state conflicts. In the place of longstanding federalism models, this article demonstrates, an underappreciated form of intergovernmental relations has emerged. We call this model “agonistic federalism.” The article’s aim is to introduce and theorize this form of intergovernmental relation by offering a parsimonious definition, a tally of its historical precursors (as well as a recognition of its rupture from more recent forms), a careful accounting of its current and future vectors, and a cartography of its underlying political economy and potential futures.
We define “agonistic federalism” as a zero-sum, no-holds-barred style of contestation between the national government and states that is characterized by mutual, partisan- driven antagonism and intolerance. It is “zero sum” in the sense that political coalitions use national and state power not just to advance policy preferences, but to lock-up decisional authority, or power as such. It is “no holds barred” insofar as it is characterized by escalating assertions of formal sovereign power in disregard of judicial precedent, political convention, and doctrinal constraints. So defined, agonistic federalism can be traced in the efforts of the national government to eliminate states and local governments’ power to adopt policies disdained by the dominant national coalition even in areas of traditional state competence. As this hardball style of intergovernmental politics radiates from the center today, it catalyzes countervailing efforts at self-defense by states. These too press against extant legal boundaries. Understood as a two-sided dynamic, agonistic federalism transforms the incentives, tactics, and ambitions animating federal-state relations. While resonating with certain antebellum-era struggles over tariff policy, fugitive slaves, and control of the territories, contemporary agonistic federalism has many novel features. It also generates unprecedented strains upon the American body politic. Mapping the resulting uncertainties, we conclude with a catalog of the unsettled and difficult doctrinal questions thrown up by new tactics of agonistic federalism. The Article also maps the practical, political stakes of this new form of intergovernmental conflict. In so doing, we aim to clarify the stakes of that old question—what actually now makes up “our federalism.”
Number
25-39
Recommended Citation
Huq, Aziz Z. and Clopton, Zachary D., "Agonistic Federalism" (2025). Public Law and Legal Theory Working Papers. 25-39.
https://chicagounbound.uchicago.edu/public_law_and_legal_theory/967
