THE RISE OF EXECUTIVE FEDERALISM:  Michael Greve has an excellent piece at Real Clear Policy on what he terms the rise of “executive federalism“:

“Cooperative” federalism is supposed to come from Congress and federal statutes. However, practically nothing comes from Congress these days. The legislature is notoriously divided. It lacks the financial resources to rope recalcitrant states in new federalism bargains (witness the ACA), and it cannot even revisit the bargains embedded in old statutes (such as education programs or the Clean Air Act). Thus, to make federal programs “work” under current conditions, agencies rewrite statutes, issue expansive waivers, and negotiate deals with individual states on a one-off basis. That is how the ACA is being “administered.” That is how Secretary of Health and Human Services Sylvia Burwell is trying to expand Medicaid. That is how No Child Left Behind is run. And that is how Environmental Protection Agency is trying to impose its Clean Power Plan: “stakeholder meetings” and assurances of regulatory forbearance for cooperating states; unveiled threats against holdout states. This brand of federalism knows neither statutory compliance nor even administrative regularity. It is executive federalism.

. . . .  Further along that path lies the fate of Argentina, which practices an advanced form of executive federalism: corrupt, ruinous, unstable.

Exactly.  “Cooperative” federalism is just a ruse–often little more than federal bribery for States to relinquish their reserved powers under the Tenth Amendment.  And while Congress could, in theory, “fix” many of the problems by writing clearer statutes, there are multiple reasons why this may not always be politically possible, and courts are left to reign in the most egregious ultra vires executive overreach.  There is much to be developed here, both politically and via litigation, to stop the erosion of federalism.