Executive Federalism

In one line

In Germany the Federation makes the law and the Lander administer it; in the United States the federal government may not require a State to administer anything.

In the wording a student can write in an exam: executive federalism describes a federation in which the general government legislates and the regional governments execute, so that the division of powers is primarily a division of legislative and administrative functions rather than of subjects.

The German system: articles 83 to 91

Article 83. The Lander shall execute federal laws in their own right in so far as the Basic Law does not otherwise provide or permit. That is the general rule and it is the opposite of the assumption most students bring from the American model.

Article 84. Where the Lander execute federal laws in their own right, they provide for the establishment of the authorities and the regulation of administrative procedures, and federal laws may provide otherwise with the consent of the Bundesrat; the Federal Government may exercise oversight to ensure that federal law is executed in accordance with the law.

Article 85. Where the Lander execute federal laws on federal commission, the Federal Government's oversight extends to lawfulness and expediency and it may issue instructions.

Article 86. Where the Federation executes laws through its own administration, it establishes the authorities.

Article 87. The matters the Federation administers directly: the foreign service, federal finance administration, federal waterways and shipping, and others.

Articles 91a to 91e. Joint tasks, treated in [Co-operative Federalism and Federal Comity].

What follows

The Lander's compensation for a weak legislative role is a strong administrative one. Articles 70 to 74 give the Federation extensive legislative competence, and article 83 gives the Lander the administration of it, which is where most of the money and most of the employment lie.

The Bundesrat's power follows from it. Because federal laws are administered by the Lander, laws affecting that administration require the Bundesrat's consent, which is why a chamber of Land governments makes sense.

Uniformity of law and diversity of administration. The law is the same everywhere and its delivery differs, which is a different bargain from the American one, where the law itself differs from State to State.

The American answer: anti-commandeering

Article I section 8 gives Congress its powers and does not include a power to direct State officers.

The Tenth Amendment reserves what is not delegated.

The doctrine. In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court held that the federal government may not commandeer the officers of a State to administer or enforce a federal regulatory programme. Scalia J read the Federalist Papers as suggesting the inducement of State officers by payment rather than the commandeering of their official services.