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Dividing authority between the federal government and the
states is central to the theory and practice of federalism.
Division is the defining feature of dual federalism, which
dominates the U.S. Supreme Court’s federalism
jurisprudence. Recent academic theories of federalism
emphasize overlap and interaction but still assume that
federal and state actors will work within separate institutions.
Each approach can be problematic, yet assumptions of
separation remain the bedrock of federalism. This Article
discusses a different form of federalism: coequal federalism.
Under coequal federalism, federal- and state-appointed
officials collaborate within a single agency that makes
decisions binding on the federal government and the states.
This form of federalism exists only within obscure niches of
American governance, and it is largely absent from theoretical
discussions. We argue that it should receive more extensive
attention and use. We also explain how coequal federalism can
function in practice, when it will offer a desirable alternative
to more traditional approaches, and why it is constitutional.