The Yale Law Journal

April 2024

Ghostwriting Federalism

FederalismAdministrative Law

abstract. Notwithstanding the Supreme Court’s admonition that federal authorities should not “unduly interfere” with state government, federal agencies frequently write state laws. They draft model state acts. They comment on pending state bills. And behind the scenes, they quietly advise state legislators and governors’ offices on proposed state legislation. Some agencies dedicate special divisions to work with states and track their legislation. Others work informally with state policymakers in overlapping areas of regulation and enforcement. Agencies have done this since the earliest days of our modern administrative state. Yet this function is mostly overlooked in canonical accounts of agencies’ work and the vast literature on administrative law.

This Article systematically maps this vital but unexamined aspect of the federal administrative state. Drawing on interviews and historical accounts from dozens of agencies, this Article charts how federal agencies shape state legislation and assesses the implications for administrative law and federalism. Federal-agency involvement in state legislation offers an important avenue for regulatory policymaking, but also one that bypasses the traditional constraints of administrative process, judicial review, anti-lobbying laws, and presidential oversight that apply to administrative agencies. Such involvement thus could prompt concerns about regulatory capture, partisanship, and drift inside the administrative state. Evidence from this Article suggests, however, that these concerns may be mitigated—and the benefits of federal-agency collaboration enhanced—when agencies adopt transparent and accountable practices that some federal agencies already observe.

Understanding agencies’ role in the statehouse also complicates the traditional account of state and federal government in our federalist system. The conventional account of American federalism assumes that when federal agencies act, they make uniform policies for the nation and that states separately make policies for their local constituencies, thereby providing testing grounds for programs that other states can adopt. The federal agencies described here flip that script. They participate in state policymaking while building state expertise and power; they develop subnational rather than uniform nationwide policies; and they transmit popular state legislation downward into the states and across them. Even as the Supreme Court has restricted agency demands on states in the name of federalism, this Article shows that federal agencies can use statehouses to further the values of federalism—among them, enhanced accountability, greater deliberation, and productive experimentation in the way we govern ourselves.

author. Robert Kingsley Professor of Law, University of Southern California Gould School of Law. For discussion and comments, I’m grateful to Sam Charles, Jessica Clarke, Zachary Clopton, Erin Delaney, Blake Emerson, Bridget Fahey, Abbe Gluck, Andrew Hammond, David Jaros, Ariel Jurow Kleiman, Anita Krishnakumar, Alexandra Lahav, Margaret Lemos, David Marcus, David Noll, Elizabeth Pollman, Michael Sant’Ambrogio, Miriam Seifter, Catherine Sharkey, Mila Sohoni, Karen Tani, Christopher Walker, Lauren Willis, and all of the participants of the Michigan Law School Administrative Law Workshop and the Loyola Law School Faculty Workshop. This Article is dedicated to Louis H. Zimmerman and Lynne Maser Zimmerman.


Conventional wisdom holds that federal agencies and state legislatures write separate bodies of law.1 Torts, property, contracts, health, and family law—these and countless other fields are shaped by state legislatures that make policy on the basis of local conditions, allowing the states to serve as “laboratories” of democracy.2 Federal agencies, meanwhile, make national policies pursuant to grants of statutory authority and subject to rules that hold them accountable—including internal procedures, judicial review, and federal oversight in the political branches.3 If you want a driver’s license, state law is the place to look. If you want to know whether a company has “created a new ‘active moiety’ by joining a previously approved moiety to lysine through a non-ester covalent bond,” federal administrative law has the answer.4

But, in important respects, that story is incomplete. Although long overlooked by scholars, federal agencies shape state legislation across virtually every field of law. They write model state acts, both by themselves and with organizations like the Uniform Law Commission (ULC).5 They comment on pending state bills.6 And behind the scenes, they quietly advise state legislators, regulators, and governors’ offices on proposed legislation.7 Some agencies dedicate special divisions to working with states and tracking their legislation.8 Others work informally on state legislation in overlapping areas of regulation and enforcement.

At first blush, the very idea that federal agencies would “ghostwrite” state legislation may seem at odds with our dual system of government.9 This Article shows, however, that such practices date back to the earliest days of the modern administrative state and continue to this day.10 Not only are they lawful, but when used appropriately, they may further many values long associated with administrative law and federalism—including more accountability, greater deliberation, and productive experimentation in the way we govern ourselves.

Both liberal and conservative policymakers inside federal agencies have long understood that their regulatory missions turned on how well they cultivated and influenced state legislative power. Consider two examples from different eras. In 2021, as the Supreme Court appeared ready to overturn the national eviction moratorium,11 federal agencies raced against time to form a plan for the nation’s statehouses to avert an “eviction tsunami” as COVID-19 cases began to surge.12 The Treasury Department reached out to state policymakers with “promising practices” and “data-driven operational analyses” to help them perform outreach in their communities and draft new legislation to protect tenants.13 Treasury also shared successful models from other states to provide financial aid and reduce eviction proceedings.14 The result was a resounding success, with thirty-one states passing new laws to protect tenants, pause evictions, secure the right to counsel, and seal eviction records.15 Instead of a sharp increase in evictions, nationwide eviction filings remained twenty-six percent below historical averages.16

In 2003, the federal Small Business Administration (SBA) developed a very different kind of plan for state legislatures to reduce regulations. President George W. Bush had ordered federal agencies to ease regulations on businesses across the administrative state.17 But small businesses complained about many regulations imposed by states and cities, which fell well outside the control of the federal government.18 So, the SBA’s Office of Advocacy drafted model state legislation that would curb regulations on small businesses modeled after its own organic law, the Regulatory Flexibility Act. It sent in “regional advocates” to “see the bill through the [state] legislative process” by educating policymakers, meeting with stakeholders, and testifying in state
19 It posted color-coded maps of the law’s progress in states on its website and secured support from the conservative American Legislative Exchange Council (ALEC).20 In one year, ten states introduced the model legislation; by the end of the sixth year, forty-four would adopt similar laws of their own in support of the SBA’s mission.21

Two sets of agencies, with distinct regulatory agendas, faced similar questions about the reach of their federal power. And had they proceeded to adopt new federal regulations on their own, they would have been subject to a variety of rules and institutional checks designed to hold them accountable—including the Administrative Procedure Act (APA), judicial review, and White House oversight. Each instead avoided those constraints by pursuing an unorthodox route: helping legislatures write their own state laws. Yet while these approaches could prompt concerns of unrestrained federal administrative power, they also facilitated legislative processes critical to achieving important state objectives. Agencies not only launched new programs consistent with federal policies, but they also lent sorely needed expertise to shorthanded state legislatures while cultivating new state institutions to act as partners in carrying out shared goals for the future.

This Article maps the ways that federal agencies shape state legislation and assesses their implications for administrative law and our divided system of government. First, it gathers early stories of federal-agency involvement in state lawmaking and the ways in which those early projects influenced other agencies. It then brings the account forward to the present with interviews from officials in fourteen agencies describing the variety of ways that federal agencies shape state law. In the process, this Article offers new descriptive and theoretical insights for administrative law and for our federal system of government.

On a descriptive level, this Article offers a comprehensive look into the variety of procedures and tools agencies use to influence state legislation. Despite the proliferation of statutes requiring federal and state governments to collaborate since the Progressive Era, few accounts have canvassed the myriad ways that federal agencies actually influence, craft, and occasionally write state laws.22 Those who have examined this phenomenon generally focused on specific agencies or on a specific subset of important federal activity with states: federally funded programs and mandates, where agencies exercise direct legal or financial power, subject to at least some federal judicial review.23 But beyond that cluster of activity, there is a sphere of agency action that is not subject to any federal judicial review. This Article focuses on these unreviewable federal-agency actions where, at least ostensibly, agencies act more like partners in state legislative reform.

This broader account shows that federal agencies use far more than federal funds and legal mandates to shape state legislation. Agencies also leverage their unique policymaking capacity to promote new programs, much like matching grants of federal dollars. “Policymaking capacity” refers to all the institutional resources a government institution needs to make law—including agenda setting, expertise, institution building, and policy coordination.24 State legislatures, many of which meet on a part-time basis, are notoriously lacking in this capacity.25 As detailed here, agencies help set agendas by convening public forums and openly testifying before state legislative committees; they lend their expertise in science, policy, and law; they build state institutions that share the same expertise as their own; and they promise needed interstate cooperation where states lack incentives to act by themselves.26 Perhaps because these activities involve softer forms of power than direct edicts, they receive very little political and judicial oversight. But they are extremely effective. In fact, as private interest groups have learned, offering these resources is critical to advancing national policies through part-time state legislatures, which often lack the staff, time, and attention to develop policies themselves.27

On a theoretical level, state legislative strategies may offer surprising benefits for administrative law and federalism, despite their potential risks. For administrative law, the big risk is that agencies will create new binding policies outside of the traditional constraints of administrative law.28 Agencies have always had a variety of tools to make policy—including rulemaking, adjudication, and guidance to private parties.29 But the assumption in those cases is that agencies adopt the policies themselves—or with another federal agency and Congress30—subject to the APA’s procedural requirements, formal judicial review, congressional oversight, or presidential control.31 Administrative forays into state law, by contrast, involve policymaking that a different sovereign body then adopts without review by federal courts, Congress, or the White House. The absence of traditional administrative oversight thus could prompt concerns about unchecked power, influence, and partisanship in the administrative state.

The findings here, however, suggest that these concerns may be mitigated—and the benefits of federal-agency collaboration enhanced—when agencies adopt transparent and accountable protocols that some federal agencies already observe. And, if those fail, many practical and political safeguards exist to prevent agency overreach—including the fact that new laws only go into effect after a vote by elected officials. In the process, agencies may even provide a public counterweight to the outsized influence private interests already exert on our state legislatures while promoting better dialogue between federal and state government.

With respect to federalism, federal agencies’ work with statehouses may further federalism values, notwithstanding the risks. To be sure, if Washington-based federal agencies dominated the state legislative process, they could upset values of individual experimentation, accountability, liberty, and decentralized power that form the basis for our system of dual sovereignty.32 As the Supreme Court warned in another context, “a more direct affront to state sovereignty is not easy to imagine” than “if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals.”33

Many examples highlighted in this study, however, offer support for a different story. They suggest that state legislative strategies instead can promote those same federalism values on the ground. Some federal agencies have become clearinghouses for policy experiments, sharing successful state legislation with other states and frequently consulting with state officials, legal organizations, and counterparts before opining on state legislative proposals.34 Federal agencies may promote state legislation designed to build state institutions and agencies, which, in turn, may advance state power and independence.35 Federal-agency involvement in state legislation may also be more transparent and thorough than when states proceed on their own,36 creating more opportunities for citizens to understand and petition their own state government.37 In this way, federal agencies can become important “network entrepreneurs”—organizations that help assemble new ideas, interest groups, and other government actors across public and private divides to build state policymaking capacity.38

To be clear, although this Article highlights these unexplored benefits of ghostwritten federalism, my primary goal is not to extol or criticize this phenomenon. Instead, I hope to document its many forms, draw attention to its unexplored advantages and risks, and make the case for why such agency collaborations with state sovereigns deserve more study alongside more well-known forms of policymaking inside the administrative state.

This Article proceeds in five Parts. Part I describes how traditional accounts of administrative law and federalism do not address agencies that shape state law. Parts II and III then provide an alternative account of the many ways federal agencies influence state legislation. Relying on interviews and history, Part II highlights the varying procedures federal agencies must observe when they work with state legislatures, including how transparently they pursue legislation, whether they rely on formal or informal departments to do so, and with whom they interact in state government. Part III then turns from the internal procedures that govern agencies to the kinds of influence they bring to bear. It presents a taxonomy of five distinct ways agencies influence state legislatures using their policymaking capacity: setting agendas, lending expertise, building institutions, coordinating policy, and funding new initiatives. These diverse strategies shape state policymaking in many ways. But the larger point is that agencies have many different tools beyond legal mandates and federal spending to affect state law.

Parts IV and V turn to normative and theoretical questions. Part IV focuses on the challenge to administrative law posed when federal-agency activity in the statehouse occurs outside established administrative processes, including the APA, federal judicial review, anti-lobbying restrictions, and presidential oversight.39 Part V turns to what this approach means for federalism. Even as the Supreme Court has warned about the impact of the administrative state on our divided system of government, federal agencies may actually promote many values federalism serves using state legislative strategies—including more participation, accountability, and democratic experimentation in state government.