3. POLITICS---gridlock makes politicians depend on states for their agenda. They’ll capitulate for political gain.

Current accounts portray President Obama’s tenure as dominated by executive policymaking and vigorous challenges from the states. We argue that such accounts overlook how federal–state collaboration has been critical to achieving Obama Administration ends. Partisan polarization has gridlocked Congress and made the President dependent on the states to advance his central policy initiatives. As a result, these initiatives are both more responsive to state demands and more bipartisan than they might appear. After exploring tools by which the President works with the states, we discuss implications for federalism, the separation of powers, and partisan polarization. In particular, the state role in shaping federal regulation raises the possibility that states are both aggrandizing and checking presidential power.

If popular reports and political attacks are any guide, President Obama’s second term has been marked by presidential policymaking and sharp state opposition. With Congress incapacitated by polarization, the President has turned to administrative action to achieve his goals, pushing his agenda on the nation under a justificatory “We Can’t Wait” mantra. Meanwhile, states have led the opposition to such executive action. Governors refuse to participate in Administration initiatives, and state attorneys general sue the federal executive branch for overreach in a variety of areas.

There is much truth to this account. Congress is gridlocked and unable to enact substantive laws on major policy issues. A number of political and structural factors contribute to legislative paralysis, but the widening ideological divide between the parties and the parties’ split control of Congress and the presidency are leading culprits. In the absence of congressional action, federal agencies have employed their powers assertively, often stretching, if not violating, underlying statutes (  ;  ). And the White House has been closely involved in administrative initiatives, with the President publicly instructing agencies to act and claiming ownership of the resulting decisions (  ). Examples of such presidentially instigated, assertive agency actions include the Department of Education’s grant of No Child Left Behind (NCLB) waivers, the Department of Homeland Security’s deferred action immigration programs, the Internal Revenue Service’s waiver of the employer mandate in the Affordable Care Act (  ), and the Clean Power Plan by Environmental Protection Agency (EPA).

A number of states have opposed these and other administrative undertakings. Many governors and state legislatures have refused to expand Medicaid pursuant to the ACA; more than half of the states have filed suit over the Administration’s executive actions on immigration; in a nearly unprecedented move, twelve states challenged the Clean Power Plan in court before the Environmental Protection Agency had even finalized it, and more than two dozen states are now challenging the final plan ( Texas v. United States ; In re Murray Energy Corp. v. EPA ; West Virginia v. EPA ). Just as partisan polarization provides the critical explanation for congressional inaction, it also furnishes the key to such state resistance. Today’s Democratic and Republican parties are thoroughly integrated across the state–federal divide, so Republican-led states are leading the challenges to a Democratic President ( ).

Looked at more closely, however, central initiatives of the Obama Administration are more collaborative, and indeed more bipartisan, than they first appear. Many federal executive undertakings depend on state participation. If for no other reason than to achieve that participation, the Obama Administration has been sensitive to state interests and concerns, including those of Republican-led states. Waivers granted by the Administration have allowed some states to expand Medicaid in ways that deviate from traditional Medicaid and incorporate Republican policy preferences. The Administration’s Clean Power Plan incorporates state policy choices into its substantive standards, as does its rule setting out minimum essential benefits for health insurance under the ACA. NCLB waivers were a response to state requests for regulatory relief and built on educational assessment metrics devised by red and blue states alike. And, in declining to enforce the federal Controlled Substances Act with respect to marijuana offenses in Colorado and Washington, the Administration has accommodated those states’ decisions to legalize recreational marijuana use.

Even as the President sets policy without Congress and a subset of states vigorously opposes his decisions, then, federal–state collaboration is critical to realizing Administration ends. National policy is increasingly determined by presidentially instigated executive branch action, but it is executive action taken in conjunction with the states. The resultant national policy is responsive to state demands, often accommodating state policy preferences from across the political spectrum. Against a background of polarized national politics and a gridlocked Congress, the state role in shaping federal regulation and federal programs is thus particularly significant. It raises the possibility that states are simultaneously enabling and checking federal executive branch initiatives, it means that federal policy may be nonuniform and differentiated by state, and it lends the President’s initiatives more of a bipartisan character than popular accounts allow.