States abdicate many of their federal responsibilities to local governments. They do not monitor local compliance with those laws, they disclaim responsibility for the actions of their local governments, and they deny state officials the legal capacity to bring local governments into compliance. When sued for noncompliance with these federal laws, states attempt to evade responsibility by arguing that local governments—and not the state—are responsible. These arguments create serious and unexplored barriers to enforcing federal law. They present thorny issues of federalism and liability, and courts struggle with them. Because neither courts resolving these conflicts nor advocates litigating them are aware that abdication occurs regularly across a number of policy areas, courts have failed to develop a consistent methodology for addressing it. This Article argues that courts should reject these state arguments in most cases and outlines the contours of a “nonabdication doctrine” that would be less solicitous and accommodating of existing state laws and more attentive to the language of federal laws.
This Article uncovers these state arguments and marks them as a pattern across a surprisingly diverse set of states and federal policies: indigent defense, election law, public assistance, conditions of incarceration, and others. It uses state filings—including archived documents—as well as interviews with numerous advocates and state officials, to explore the concept of state abdication. It posits that abdication is a consequence of superimposing federal responsibilities onto the diverse legal and political relationships between states and their local governments. It suggests that abdication provides a new lens through which to reassess previous thinking on localism, federalism, and decentralization. Because abdication permits states to shelter noncompliance with federal law at the local level and mutes productive local dissent, it reveals a cost to decentralizing federal policy that federalism scholarship overlooks.
States abdicate many of their federal responsibilities to local governments. They do not monitor local compliance with those laws, they disclaim responsibility for the actions of their local governments, and they deny state officials the legal capacity to bring local governments into compliance. When sued for noncompliance with these federal laws, states attempt to evade responsibility by arguing that local governments—and not the state—are responsible. These arguments create serious and unexplored barriers to enforcing federal law. They present thorny issues of federalism and liability, and courts struggle with them. Because neither courts resolving these conflicts nor advocates litigating them are aware that abdication occurs regularly across a number of policy areas, courts have failed to develop a consistent methodology for addressing it. This Article argues that courts should reject these state arguments in most cases and outlines the contours of a “nonabdication doctrine” that would be less solicitous and accommodating of existing state laws and more attentive to the language of federal laws.
- ABDICATION IN PRACTICE
- Four Case Studies
- Public Assistance in New York
- Incarceration in California
- Indigent Criminal Defense in Michigan
- Election Law in Alabama
- Other Examples Inside and Outside of Litigation
- Making Sense of the Existing Case Law
- Four Case Studies
- UNDERSTANDING ABDICATION
- Compliance Costs
- Representational Costs
- State-Local Factors
- External Factors
- ABDICATION AND FEDERALISM
- Abdication as Critique
- Local Constitutionalism
- Cooperative Federalism
- A Coherent Approach to Abdication
- State Liability
- State Structure
- Remedying Abdication
- Federal Abdication
- Beyond Abdication: Three Outstanding Questions
- Why Do States Abdicate?
- Do States Have a Duty to Supervise?
- What Other Structural Barriers Exist?
- Abdication as Critique
Much federal law regulates the conduct of states. 1 See, e.g., Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 1997, 2008–17 (2014) [hereinafter Gluck, [National] Federalism] (noting “the reach of federal statutes into areas of historic state control continues to expand” and discussing federal health care laws, social security laws, labor laws, telecommunications laws, and others). States, in turn, delegate many of their federal responsibilities to local governments. 2 See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1, 1 (1990) [hereinafter Briffault, Our Localism I] (“State legislatures, often criticized for excessive interference in local matters, have frequently conferred significant political, economic and regulatory authority on many localities.”); Richard Briffault, “What About the ‘Ism’?” Normative and Formal Concerns in Contemporary Federalism, 47 Vand. L. Rev. 1303, 1318 (1994) [hereinafter Briffault, “What About the ‘Ism’?”] (“In most states, local governments operate in major policy areas without significant external legislative, administrative, or judicial supervision.”). This Article argues that states do more than delegate those responsibilities; they abdicate them. They do not monitor local compliance with those laws, they disclaim responsibility for the actions of their local governments, and they relinquish the legal capacity to bring their local governments into compliance. When states are sued for noncompliance with these federal laws, they attempt to evade responsibility by arguing that local governments—and not the state—are responsible. These arguments create serious, widespread, and unexplored barriers to enforcing federal law, and this federal–state–local dynamic exists across a surprisingly diverse set of states and policy areas: indigent defense, election law, public assistance, conditions of incarceration, and others.
Abdication provides a new lens through which to reassess previous thinking on localism, federalism, and decentralization. Abdication permits states—intentionally or unintentionally—to shelter noncompliance with federal law at the local level, which can mute productive local dissent. It allows states to use the veneer of federalism, and state-protective federalism doctrines, to obscure their failure to comply with federal law. It thus reveals a cost to decentralizing federal policy that federalism scholarship overlooks.
Consider a recent example. The Sixth Amendment requires states to provide lawyers for defendants who cannot afford to hire their own. 3 See Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963). Idaho has abdicated that responsibility to its local governments: State law makes Idaho’s counties responsible for providing counsel to indigent defendants. 4 See Idaho Code § 19-859 (2017) (stating “[t]he board of county commissioners of each county shall provide for the representation of indigent persons and other individuals who are entitled to be represented by an attorney at public expense” and providing four options for compliance). In 2015, a class of indigent defendants sued Idaho for failing to discharge its Sixth Amendment responsibilities. 5 Class Action Complaint for Injunctive and Declaratory Relief, Tucker v. State, No. CV-OC-2015-10240 (Idaho Dist. Ct. June 17, 2015), http://www.aclu.org/sites/default/files/field_document/acluidahopubdefensecomplaintfilestamp-sm.pdf (on file with the Columbia Law Review). Idaho officials made what I call an “abdication argument”: They disclaimed responsibility for the actions of their local governments and argued that they were powerless to correct the problem because the sovereign decision to delegate indigent defense responsibilities was legislative, not executive. 6 Memorandum in Support of Motion to Dismiss at 5, Tucker, No. CV-OC-2015-10240 (on file with the Columbia Law Review); see also id. at 10 (“Of course the Governor and Commission members have political or governmental interests in improving Idaho’s indigent defense system, but they have no legal authority to address the system as requested in the Complaint.”). States, of course, do not embrace the term “abdication.” But this Article uses it to describe state arguments that draw on state law to avoid responsibility for federal law and instead blame local governments for noncompliance. The Idaho state court agreed and dismissed the complaint. It held that although the state was “ultimately responsible” for complying with the Sixth Amendment, 7 Tucker, slip op. at 5 (on file with the Columbia Law Review). and although the plaintiffs made “troubling allegations” about the state’s indigent defense system, 8 Id. at 31. the governor and other state officials could not be held accountable because they lacked authority to remedy the violation. 9 See id. at 22–23 (holding while the governor and Public Defense Commission have “moral, political, and public power to pressure the legislature or the counties to act,” neither “have the ability to require it”). The court further held that the separation of powers doctrine rendered the case nonjusticiable. See id. at 31.
This Article uses state briefing—including archived materials—and interviews with numerous advocates and state officials to explore the causes and consequences of abdication. The Idaho case illustrates two kinds of structural barriers to compliance with federal law created by abdication. First, prelitigation—or “front-end”—barriers: Based on court filings, Idaho officials did not believe they were responsible for local noncompliance with the Sixth Amendment. That belief is likely to lead to noncompliance with federal law. Second, litigation—or “back-end”—barriers: The court dismissed the lawsuit. Even if the court’s decision is ultimately reversed on appeal, in line with other suits of its kind, 10 State courts in Michigan and New York have recently rejected arguments like Idaho’s. See infra section I.A.3. it creates a delay in enforcing federal rights caused by uncertain doctrine in this area of law.
This federal–state–local dynamic is widespread among states and federal policy areas. Federal election laws, for example, impose voter registration, absentee balloting, and other election responsibilities onto states that states in turn delegate to their local governments. 11 See Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747, 755–64 (2016) [hereinafter Weinstein-Tull, Election Law Federalism] (describing a set of federal election laws that impose election-administration responsibilities onto states, which in turn delegate those responsibilities to local governments). Federal public-assistance programs, like food stamps and cash assistance, impose requirements onto states that states delegate to their local governments. 12 See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 265–66 (2d Cir. 2003) (describing how New York has delegated day-to-day administration of federal public-assistance programs like food stamps, cash benefits, and Medicaid to its fifty-eight local county districts). The Americans with Disabilities Act and the Eighth Amendment impose requirements on state prisons that states have delegated to local governments by sending state prisoners to county jails. 13 See, e.g., Armstrong v. Schwarzenegger (Armstrong I), 622 F.3d 1058, 1062 (9th Cir. 2010) (describing how California sends state prisoners to county jails and then disclaims responsibility for the conditions of those jails). Consistent across these policy areas, states use their decentralized structures to attempt to avoid liability under federal law. 14 See infra Part I. The case studies differ in important ways as well. For example, the federal law at issue in the public-assistance and election-law contexts is statutory, the federal law at issue in the indigent-defense context is constitutional, and the federal law at issue in the incarceration context is a mix. See section I.C.
Abdication cases present thorny issues of federalism and liability, and courts struggle with them. Because courts tend to reject state abdication arguments, this Article uses the term “nonabdication doctrine” to describe that set of cases. 15 See infra section I.A. But because neither courts resolving these conflicts nor advocates litigating them are aware that abdication occurs regularly across different policy areas, and they rarely cite to the full set of abdication cases, 16 See infra note 185 and accompanying text. the nonabdication doctrine is inconsistent and ill-defined. It is more the promise of a doctrine than a stable set of principles.
Though abdication is a common feature of our federal system, it has little presence in the academic literature. Abdication implicates both federalism and localism. But with a few notable exceptions, 17 See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1372–73 (2009) (suggesting that the state–local relationships—and state court interpretations of those relationships—can inform Tenth Amendment federalism claims); David J. Barron, A Localist Critique of the New Federalism, 51 Duke L.J. 377, 377–78 (2001) [hereinafter Barron, A Localist Critique] (noting the commitment to local control contained in recent federalism decisions but warning that those decisions may have the unintended consequence of diminishing state and local authority); Briffault, “What About the ‘Ism,’” supra note 2, at 1307–17 (examining federalism’s relationship to localism and local control); Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1271–74 (2009) (describing how disagreement between the federal, state, and local governments can result in productive dialogue and disagreement); Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959, 1000–22 (2007) (arguing that localism serves many of the same aims as federalism and exploring the ways in which local governments and the federal government partner to achieve federal ends, despite potential state disagreement); Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures’ Control, 97 Mich. L. Rev. 1201, 1243 (1999) [hereinafter Hills, Dissecting the State] (arguing courts should presume state law does not prevent state and local officials from administering federal law unless the state legislature clearly prohibits it); Weinstein-Tull, Election Law Federalism, supra note 11, at 751–52, 778–80 (observing that states delegate many of their election responsibilities to local governments, creating noncompliance with some federal election laws). these areas of scholarship have remained largely distinct. That separation is unfortunate, as each topic adds richness to the other.
Federalism scholars, for example, have recently explored the roles of states in administering federal law generally. 18 Contributors to a recent symposium in the Yale Law Journal set out this perspective. See generally Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 Yale L.J. 1889 (2014). They have argued that disagreement between federal, state, and local governments can create policy “churn,” which creates productive national consensus around difficult political issues. 19 Heather K. Gerken, The Supreme Court, 2009 Term—Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 67 (2010) [hereinafter Gerken, Federalism All the Way Down]. For example, Heather Gerken believes that Arizona’s recent immigration law “galvanized national debate” on the topic. See id. at 68. That churn, however, relies upon citizen engagement and open disagreement between governments. State abdication, by contrast, permits states to obscure disagreement with federal law by incubating noncompliance at the local level. Abdication therefore reveals a cost to decentralizing federal law that these federalism scholars do not account for.
Local government scholars, on the other hand, have long studied “home rule,” or the distribution of power between states and local governments. They examine how states distribute substantive responsibilities—like zoning, taxation, and education—between state and local officials. 20 See, e.g., David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255, 2288–300 (2003) [hereinafter Barron, Reclaiming Home Rule]; Briffault, Our Localism I, supra note 2, at 15; Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841, 1860–75 (1994); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1059, 1120–28 (1980) (weighing the benefits and drawbacks of decentralizing power from states to cities). Abdication adds a different perspective: If states can put compliance with federal law at risk by abdicating federal responsibilities to local governments, local government scholars should focus not only on the state–local distribution of substantive power but also on the state’s role in overseeing and supervising its local governments. If federalism scholars are right that states are playing an expanding role administering federal law, local governments will in turn administer more federal law than ever before. And yet scholarship on the administrative relationships between states and their local governments is scarce. 21 The most recent comprehensive study on state supervision over local governments is a 1981 report that attempted to empirically measure local governmental autonomy by state. See Advisory Comm’n on Intergovernmental Relations, Measuring Local Government Discretionary Authority (1981), http://www.library.unt.edu/gpo/acir/Reports/information/M-131.pdf [http://perma.cc/6LV7-R8RY] (empirically measuring the independence of local governments in every state along several dimensions); see also Council of State Gov’ts, State-Local Relations: Report of the Committee on State-Local Relations 11–55 (1946); U.S. Advisory Comm’n on Intergovernmental Relations, State Laws Governing Local Government Structure and Administration 1 (1993), http://www.library.unt.edu/gpo/acir/Reports/information/M-186.pdf [http://perma.cc/47JD-LJMT] (surveying state laws and constitutional provisions affecting municipal and county governments).
This Article has descriptive and normative aims. Descriptively, it explores how and why states abdicate their federal responsibilities to local governments and how that transfer of power affects federal law. It uses litigation against states as a means of identifying state abdication in four policy areas and speculates as to the existence of abdication elsewhere (Part I). Cataloging state abdication arguments marks the problem of abdication as widespread and provides a set of cases that form a foundation for a more coherent nonabdication doctrine. 22 As a practical matter, collecting these cases will serve as a resource for advocates and courts facing state-delegation arguments. Presumably because of the murkiness of the doctrine, states continue to make these arguments regularly. California, for example, was recently sued for failing to provide adequate indigent defense services in Fresno. In a demurrer filed in late 2015, California argued that it was not responsible for what it deemed to be Fresno’s failure. See Memorandum of Points and Authorities in Support of Demurrer of Defendants State of California and Governor Edmund G. Brown at 5–8, Phillips v. California, No. 15CECG02201 (Cal. Super. Ct. Sept. 14, 2015). Perhaps because of inconsistent doctrine, advocates and courts do not regularly respond to these arguments holistically by referencing other areas of law in which courts have acted.
Compiling these case studies also illustrates the dangers of state abdication (section II.A). Abdication causes compliance concerns by creating a Catch-22 for the federal government and advocates who hope to enforce federal law. The front-end and back-end barriers that abdication creates are state-level roadblocks to enforcing that law. As a consequence, abdication pushes enforcement efforts down to the local level. But local noncompliance can be difficult to find and fix, 23 See Hills, Dissecting the State, supra note 17, at 1218 (“[T]he federal government has an insufficient number of elected policy generalists to monitor effectively 39,000 local governments.”). The voting rights domain offers a helpful example of this principle. Congress enacted section five of the Voting Rights Act of 1965 in part because enforcing the right to vote against the thousands of state and local jurisdictions proved impossible. See Shelby County v. Holder, 133 S. Ct. 2612, 2633 (2013) (Ginsburg, J., dissenting) (comparing fighting vote discrimination to “battling the Hydra[—][w]henever one form of voting discrimination was identified and prohibited, others sprang up in its place”). and some federal policy areas require statewide remedies unavailable at the local level. 24 ee infra note 223 and accompanying text. Abdication also causes representational harm by weakening the relationship between the public and its governing representatives. This representational harm takes two forms: diminished accountability of government officials and quieted public dissent.
This Article also seeks to explain why and how delegation becomes abdication (section II.B). It argues that abdication is a consequence of superimposing federal responsibilities onto the complicated legal and political preexisting relationships between states and their local governments. When highly decentralized states delegate their federal responsibilities onto highly autonomous local governments, officials in those states are likely to believe they lack the authority to supervise their local governments and, when necessary, bring them into compliance. 25 See infra notes 197–204 and accompanying text. States across the political spectrum—including states where we might expect resistance to federal law and states normally sympathetic to federal law—regularly abdicate their federal responsibilities to local governments and attempt to avoid liability in court.
Normatively, this Article proposes a consistent way for courts to address state abdication arguments (Part III). It argues that a coherent nonabdication doctrine would be less solicitous and accommodating of existing state delegation laws and more attentive to the language of the federal laws. It suggests that courts take seriously the doctrine holding that, for the purposes of federal law, local governments are arms of the state—a doctrine that most courts considering abdications cases ignore. It also suggests that courts and Congress should clarify that state officials are empowered to comply with federal law, even when internal state structure complicates compliance, and require states to actively monitor local government noncompliance.
This Article further argues that abdication and the federal–state–local dynamic it reflects cast doubt on some contemporary federalism scholarship and doctrine. Local constitutionalism, for example, promotes federal court deference to local conduct that vindicates positive constitutional protections but makes assumptions about federal supremacy and the expressive values of local dissent that abdication calls into question. Cooperative federalism laws, similarly, seek to harness states to administer federal programs and tailor them to specific local needs. These laws invite states to exercise their sovereignty by enacting legislation and creating administrative agencies. 26 See Gluck, [National] Federalism, supra note 1, at 2007 (“[A]s part of Congress’s efforts to give the states substantive lawmaking roles in national schemes, Congress has asked the states to enact . . . state laws, create new state institutions, and pass new state administrative regulations—in other words, to exercise their sovereign powers in service of the national statutory project.”). Federalism doctrines—like the anticommandeering principle—protect state sovereignty but, in so doing, also protect state prerogatives to abdicate. This Article argues that the cost to compliance with federal law due to abdication is not the familiar costs created by errant local governments or intransigent states—those are well studied in the literature. Rather, it is due to the combination of state-protective federalism doctrines and the legal and political nebulousness of the state–local relationship.
The Article concludes by speculating about what motivates states to abdicate their responsibilities to local governments. It offers several possible motivations, including intransigence and resistance to federal law, thoughtfulness and a sincere interest in decentralization, or a lack of funds sufficient to comply with federal law.
I. Abdication in Practice
Geographically and politically diverse states have made abdication arguments across a variety of federal policy areas. This Part presents four case studies and a collection of other examples. In each study, the state delegated a federal responsibility down to its local governments. Those local governments failed to discharge their responsibilities, and the state was sued. In each study, state officials attempted to avoid responsibility by arguing that delegating the obligation exempted them from liability.
The four case studies demonstrate the absence of any coherent doctrine governing abdication. Neither the courts nor the advocates in these cases regularly cite to abdication cases in other policy areas, 27 See infra section II.B. which may contribute to this incoherence. As described in this Part, courts tend to reject state abdication arguments. But as the Idaho example above demonstrates, states sometimes prevail. Even courts that do reject abdication arguments do so in inconsistent ways.
But first, some definitional work. I understand abdication arguments to consist of some combination of three positions, often asserted in tandem, intended to avoid liability for local noncompliance: (1) the state is not responsible for local noncompliance, 28 See, e.g., Appellees’ Brief at 28–42, United States v. Missouri, 535 F.3d 844 (8th Cir. 2008) (No. 07-2322), 2007 WL 6603869 (arguing that local election administrators are not state actors, so Missouri cannot be responsible for their noncompliance with the National Voter Registration Act). (2) the state is unaware of local noncompliance because it does not monitor or supervise local action, 29 See, e.g., Armstrong v. Brown (Armstrong II), 732 F.3d 955, 961 (9th Cir. 2013) (noting that California’s “‘ongoing failure to train, supervise, and monitor’ their employees . . . ha[s] played a significant role in causing the undoubted discrimination against Armstrong class members in county jails” (emphasis omitted) (quoting Armstrong v. Brown, 857 F. Supp. 2d 919, 937 (N.D. Cal. 2012))). and (3) the state is powerless to correct local noncompliance. 30 See, e.g., State Defendants’ Response to the United States’ Motion for Summary Judgment, Declaratory Judgment, and Permanent Injunctive Relief at 5–6, United States v. Alabama, 857 F. Supp. 2d 1236 (M.D. Ala. 2012) (No. 2:12-cv-00179-MHT-WC) (describing Alabama’s decentralized system of elections and the state’s lack of power over local elections officials). All three positions need not be present to constitute an abdication argument. 31 These arguments can be related, but they are distinct. For example, a state may argue that it is not responsible for local compliance because it is unaware of local noncompliance or because it is aware of local noncompliance but the local government had failed to come into compliance. See Reynolds v. Giuliani, 506 F.3d 183, 192–93 (2d Cir. 2007) (holding that the state attempted to supervise and monitor the local government’s administration of public-assistance programs, creating a high bar for holding the state ultimately responsible for the local noncompliance). These three positions appear throughout the abdication cases described in this Part and arise as common themes in conversations with both state officials and advocates of federal law.
Additionally, I understand abdication to be a particular kind of delegation. This Article treats delegation as any transfer of responsibility from one body to another. Abdication is an extreme form of delegation, an effort at a clean break.
The presence of state abdication is not itself evidence of noncompliance with federal law, or even intent to violate federal law. States may abdicate a given federal responsibility, which can then be fully discharged by local governments. But abdication creates barriers to compliance with federal law that are distinct from problems created by more moderate delegation. Delegation creates policy decentralization, a phenomenon carefully studied by scholars and the judiciary. 32 See, e.g., Barron, A Localist Critique, supra note 17, at 382 (describing the values of policy decentralization, including “more participatory and responsive government; more diversity of policy experimentation; more flexibility in responding to changing circumstances; and more diffusion of governmental power, which in turn checks tyranny”). Abdication, on the other hand, is a kind of delegation that carries serious downsides and has not been previously explored. The remainder of this Part illustrates abdication, inside and outside of litigation.
A. Four Case Studies
These case studies examine how four states have abdicated different federal responsibilities. Each study presents a brief description of the responsibility, the state’s delegation of that responsibility to local governments, the state’s argument to evade liability when sued for local noncompliance with the federal law, and the court’s reasoning.
1. Public Assistance in New York. — Most federal public-assistance programs involve some state administration. 33 See King v. Smith, 392 U.S. 309, 316 (1968) (describing federal cash assistance as “a scheme of cooperative federalism . . . financed largely by the Federal Government, on a matching fund basis, and . . . administered by the States”); see also Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America’s Public Income Transfer Programs, 14 Yale L. & Pol’y Rev., 1996, at 123, 124 (noting most federal public-assistance programs tend to follow the cooperative federalism Spending Clause model in which states accept federal money in exchange for agreeing to administer programs that further a federal priority). Many states delegate those administrative responsibilities to their local governments. In particular, local governments frequently administer the Food Stamp Act, Medicaid, and programs derived from the Americans with Disabilities Act (ADA) and the Rehabilitation Act. 34 See, e.g., Heather Hahn et al., HHS, A Descriptive Study of County- Versus State-Administered Temporary Assistance for Needy Families Programs, at v (2015) [hereinafter Descriptive Study of TANF Programs], http://www.acf.hhs.gov/sites/default/files/opre/county_tanf_final_report_submitted_to_acf_b508.pdf [http://perma.cc/DUT7-P44Q] (noting about half of states delegate their administrative responsibilities under the federal cash assistance program to local governments); see also Karen M. Tani, Welfare and Rights Before the Movement: Rights as a Language of the State, 122 Yale L.J. 314, 333–46 (2012) (describing the historical origins of decentralized public-assistance programs in the context of social security).
New York is among the states that delegate their federal public-assistance-administration responsibilities to local officials. 35 See Descriptive Study of TANF Programs, supra note 34, at 2. As described by New York’s highest court, social services are state programs “administered through the 58 local social services districts under the general supervision of the State Department of Social Services and the State Commissioner of Social Services.” 36 See Beaudoin v. Toia, 380 N.E.2d 246, 247 (N.Y. 1978) (citing N.Y. Const. art. XVII, § 1; N.Y. Soc. Serv. Law § 17 (LexisNexis 1978) (amended 2016); id. § 20 (amended 2017); id. § 34 (amended 1994)). County social-services commissioners administer public-assistance funds, whether federal, state, or local in origin. 37 Id. (noting county commissioners are local outposts of the state apparatus).
In the 2000s, the Second Circuit considered two cases filed by public-assistance recipients and prospective recipients against both the state of New York and New York City. 38 See Reynolds v. Giuliani, 506 F.3d 183 (2d Cir. 2007); Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003). In each case, the state of New York argued that its delegation to local government absolved the state of responsibility for local noncompliance with the federal programs. 39 See Reynolds, 506 F.3d at 189 (“[S]tate defendants maintain that whatever injury plaintiffs have suffered as a result of a violation of their rights under these Acts is a subject for redress from the City of New York.”); Henrietta D., 331 F.3d at 284 (“The state defendant argues that neither the ADA nor the Rehabilitation Act require her to supervise the conduct of subsidiary governmental entities who are more directly delivering social services.”).
The courts ruled for the state in one case and against the state in the other. In the first, Henrietta D. v. Bloomberg, the court held that the state retained ultimate responsibility for local noncompliance with the laws, despite its abdication argument. 40 Henrietta D., 331 F.3d at 265 (holding that the state defendant was not shielded by sovereign immunity and had an obligation to supervise the effective delivery of benefits). Specifically, the court considered whether the state was responsible for New York City’s failure to accommodate HIV-positive applicants for the Food Stamp and Medicaid programs. 41 Id. at 284–87 (discussing whether the ADA and the Rehabilitation Act required the state defendant “to supervise the conduct of subsidiary governmental entities who are more directly delivering social services”). It held that it was: that although the Rehabilitation Act does not on its face require states to supervise their local governments, “Congress’s intent [is] best . . . effectuated by imposing supervisory liability on the state.” 42 Id. at 285, 287.
The court grounded its analysis in the responsibilities created by Spending Clause legislation. Spending Clause legislation, it reasoned, was akin to a contract between a state and the federal government. 43 Id. at 285. To receive the federal money attached to the Food Stamp and Medicaid Acts, New York agreed to administer the programs. 44 Id. at 286. It could not then avoid its responsibilities under that agreement by giving them away to local governments. 45 Id. The court cited case law finding states ultimately responsible for complying with other pieces of Spending Clause legislation, including public assistance, even when states had delegated those responsibilities downward. 46 Id. at 286–87.
The court also examined New York state law in its decision and noted that “the nature of the relationship between the state defendant and the city defendants [was] a key issue” in the case. 47 Id. at 266 (noting that the state–local relationship was important because “both the city defendants and the state defendant play a role in the administration of New York’s social services system”). The court constructed a hierarchy of authority for public-assistance administration using state statutes and case law. 48 Id. (noting that the state oversees local administration “through administration of a ‘fair hearing’ system whereby applicants for, and recipients of, state-provided public benefits may challenge local district decisions before an impartial administrative law judge, and may ultimately seek judicial review” (quoting N.Y. Soc. Serv. Law § 22 (LexisNexis 1978) (amended 2016))); id. at 287 (noting that in the context of attorneys’ fees, “the [Aid to Families with Dependent Children] administrative scheme creates an interconnected and inextricable chain of authority, with ultimate power reposed in the [State Department of Social Services (‘DSS’)]” (second alteration in original) (internal quotation marks omitted) (quoting Thomasel v. Perales, 585 N.E.2d 359, 363 (N.Y. 1991))). It held that despite New York’s delegation, state law assigned ultimate responsibility for noncompliance to the state. 49 Id. (“We therefore conclude that Congress’s intent would best be effectuated by imposing supervisory liability on the state defendant.”).
Just a few years later, however, a different Second Circuit panel reached a contradictory opinion. In Giuliani v. Reynolds, the court again considered claims against New York for failing to adequately supervise New York City’s administration of the Food Stamp Act and Medicaid. 50 506 F.3d 183, 186–87 (2d Cir. 2007). The Reynolds plaintiffs claimed that public-assistance offices in New York City deterred potential applicants from applying for the programs. 51 Id. Unlike in Henrietta D., the Reynolds plaintiffs did not preserve claims under the federal public-assistance laws or disability laws themselves. 52 They brought those statutory claims in the district court but abandoned them on appeal. Id. at 190. Instead, they brought suit under section 1983, with a more general claim that New York failed to supervise New York City’s administration of the federal programs. 53 Id. at 189–90.
Again, New York argued that it was not responsible for failing to supervise local administration of public-assistance programs. 54 Reply Brief for the State Appellants at 31, Reynolds, 506 F.3d 183 (Nos. 06-0283cv(L), 06-0284cv(CON)), 2006 WL 5126168 (arguing that neither the Food Stamp Act nor Medicaid created supervisory obligations on states that could be enforced under section 1983). This time, the court agreed: It declined to find New York responsible for the city’s noncompliance. 55 Reynolds, 506 F.3d at 186. The court relied on the strict vicarious liability standards set out in Monell v. Department of Social Services of the City of New York, 56 436 U.S. 658 (1978). in which the Supreme Court held that governments were responsible only for unlawful acts “implemented or . . . executed pursuant to a governmental policy or custom.” 57 Reynolds, 506 F.3d at 190 (citing Monell, 436 U.S. at 691). The court also held that the stricter Monell standard applied whether the relief sought was monetary or injunctive. Id. at 191 (“We join several of our sister circuits in adopting the view that Monell’s bar on respondeat superior liability under § 1983 applies regardless of the category of relief sought.”). The Reynolds court held that because the state had issued directives and monitored compliance with the federal law in response to the plaintiffs’ complaints, it was not liable under section 1983. 58 Id. at 195–97. The court passed no judgment on whether New York was liable under the public-assistance laws themselves, since the plaintiffs abandoned that argument on appeal. 59 Id. at 190.
Other states have similarly attempted to avoid responsibility for noncompliance with federal public-assistance laws by deploying abdication arguments. In Robertson v. Jackson, for example, plaintiffs eligible for food stamps sued a Virginia state official for statewide noncompliance with various requirements of the Food Stamp Act. 60 972 F.2d 529, 529–32 (4th Cir. 1992). The state official argued that Virginia’s decentralized system of public-assistance administration excused him from responsibility for local violations of the federal laws. 61 Id. at 530. The Fourth Circuit held that the Food Stamp Act makes state agencies ultimately responsible for compliance, regardless of a state’s decision to delegate: “A state that chooses to operate its program through local, semi-autonomous social service agencies cannot thereby diminish the obligation to which the state, as a state, has committed itself, namely, compliance with federal requirements governing the provision of the food stamp benefits . . . .” 62 Id. at 534. The Ninth Circuit has held similarly in response to arguments made by California. 63 In Woods v. United States, the Ninth Circuit considered whether California could be held responsible for the actions of San Francisco in administering the Food Stamp Act. 724 F.2d 1444, 1447–48 (9th Cir. 1984). It held that San Francisco was merely an “agent” of California in administering the program and that “California had the power to permit local governmental units to administer the program, but it could not delegate its ultimate responsibility to comply with the requirements of the Act.” Id.; see also California v. Block, 663 F.2d 855, 861 (9th Cir. 1981) (holding that the U.S. Department of Agriculture could collect money from California based on the misadministration of the Food Stamp Act by two California counties).
2. Incarceration in California. — California houses many prisoners—convicted of state crimes and incarcerated pursuant to state authority—in county jails rather than state prisons. This state–local delegation happens in multiple ways. County jails house state parolees if their parole is revoked or during the interim period between a parole hold and a parole revocation hearing. 64 See Armstrong I, 622 F.3d 1058, 1063–64 (9th Cir. 2010) (describing the conditions under which a state may house prisoners in county jails). County jails also house state prisoners enrolled in in-custody drug treatment. 65 Id. California creates these delegations through its authority under the state penal code and through contracts between the state and the counties. 66 Id. (citing Cal. Penal Code § 4016.5 (West 2007)). These delegations affect thousands of prisoners. 67 Id. (“[T]he San Mateo County Jail houses an average of 480 parolees a day, and Alameda and Sacramento County jails each house an average of 1000 parolees a day.”).
In addition, a recent California law—termed “realignment”—transferred authority over many thousands of people who would normally be housed in state prisons to county jails. Realignment is California’s effort at downsizing its prison population in response to a U.S. Supreme Court opinion ordering it to do so. 68 See Joan Petersilia, California Prison Downsizing and Its Impact on Local Criminal Justice Systems, 8 Harv. L. & Pol’y Rev. 327, 327 (2014) (citing Brown v. Plata, 563 U.S. 493 (2011)). It has resulted in a dramatically increased number of state prisoners in county jails. 69 See Armstrong I, 622 F.3d at 1064 (noting that 14,000 state prisoners were to be housed in county jails because of a court order in a case preceding realignment); Petersilia, supra note 68, at 332–34 (detailing the number of state prisoners handled by county jails after realignment).
Beginning in the 1990s, a group of state prisoners housed in county jails sued the state, claiming that jail conditions failed to comply with the ADA, the Rehabilitation Act, and the Eighth Amendment to the U.S. Constitution. 70 Armstrong I, 622 F.3d at 1063–64. The parties litigated the case over many years; the plaintiffs ultimately prevailed and received several remedial orders forcing the state to comply. 71 See id.
One remedy imposed by the district court required the state to establish a computerized program that tracked disabled prisoners to ensure that the state accommodated their disabilities as required by federal law. 72 Id. at 1063. The state argued that it was not responsible for ensuring that prisoners housed by counties received accommodations, even those who would be housed in state prisons but for the state’s delegation. 73 Id. at 1062. The state couched its claim in an attack against a federal regulation preventing a state from avoiding its responsibilities under the ADA by contracting away its prison responsibilities. See 28 C.F.R. § 35.130(b)(1) (2016) (stating “[a] public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability,” deny accommodation to an individual (emphasis added)). The state also argued that the remedial orders violated the anticommandeering principles set forth in Printz v. United States because they required state employees to administer a federal program. 74 Armstrong I, 622 F.3d at 1068–69 (citing Printz v. United States, 521 U.S. 898, 919–21 (1997)).
The court rejected these arguments and held that California officials could not “shirk their obligations to plaintiffs under federal law by housing them in facilities operated by the third-party counties.” 75 Id. at 1074. It held that the ADA did not run afoul of anticommandeering principles because the state, by choice, contracted out its prison services to local governments. 76 Id. at 1069 (“The State’s only obligation under the order is with regard to its own prisoners and parolees, and it is triggered in this case purely by the State’s choice to house incarcerated persons in the county jails.”). The court did not treat counties as a part of the state, or an “arm of the state.” Instead, it treated the counties as third parties that happened to contract with the state to provide a service housing prisoners. The court made it clear that the state was not responsible for making sure county governments complied with the ADA for their own—that is, county—prisoners. 77 Id. (“The State could avoid all obligations to ensure that anyone in the county jails receives the accommodations required by the ADA by choosing not to house class members in those jails.”).
Just three years later, California reiterated its arguments before the Ninth Circuit. In the time period between the two cases, California enacted realignment which, as described above, transferred authority over tens of thousands of state prisoners to county jails. As part of realignment, “certain [state] parolees awaiting a revocation hearing or serving a revocation term” were to “‘be under the sole legal custody and jurisdiction of local county facilities’ while housed in county jails.” 78 Armstrong II, 732 F.3d 955, 958 (9th Cir. 2013) (quoting Cal. Penal Code § 3056 (West 2012)), cert. denied, 134 S. Ct. 2725 (2014) (mem.). In litigation, California argued that realignment divested it of authority over that class of parolees, so it could not be responsible for ensuring that they received disability accommodations. 79 Id. at 959.
Again, the Ninth Circuit disagreed. It held that realignment did “not relieve defendants of all responsibility for the discrimination suffered by Armstrong class members housed in county jails, past and present, or of their obligation to assist in preventing further violations.” 80 Id. at 960. It emphasized the state’s own role in housing the prisoners, even though the plaintiffs were not specifically housed in state prison. 81 Id. at 960–61. This holding affirmed the plaintiffs’ argument that the state was not responsible for the actions of its counties; rather, it was responsible for its own failure to supervise. See Brief in Opposition at 17–18, Brown v. Armstrong, 134 S. Ct. 2725 (2014) (No. 13-1056), 2014 WL 1783194 (“In fact, the Ninth Circuit recognized the State’s right to divide authority, but found based on the precise circumstances here that the State retained authority over—and thus obligations to—class members the State puts in county jails.”). The court linked the state’s liability with its failures both to “train, supervise, and monitor” the county jails and to effectively communicate with county jails about the needs of the prisoners. 82 Armstrong II, 732 F.3d at 961 (internal quotation marks omitted) (quoting Armstrong v. Brown, 857 F. Supp. 2d 919, 937 (N.D. Cal. 2012)).
The Ninth Circuit again resisted the idea that the state was responsible for the conditions of county jails because counties are a part of the state. The court compared county jails to adoptive parents: A state may be liable to a child in the foster-care system even after the child is adopted, “if the state ‘affirmatively create[s] a danger that the adopted child would not have otherwise faced,’ and the state was aware of the danger it created.” 83 Id. (quoting Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 843–44 (9th Cir. 2010)). Similarly here, “the state cannot house persons for whom it is responsible in jails where the state reasonably expects indignities and violations of federal law will continue to occur, turn care over to county custodians, and then disown all responsibility for their welfare.” 84 Id. at 961–62. For the court, the county had no special relationship with the state; it was merely the delegatee.
This issue is bound to arise again in California. The Ninth Circuit cases specifically dealt with disability accommodation in California prisons and jails, but scholars have noted that realignment has caused many of the overcrowding problems that previously plagued state prisons to flow downstream. Prison scholars and advocates have described the “deterioration” of county jail conditions, including inadequate medical care and increased prison violence. 85 See Petersilia, supra note 68, at 348–49 (describing interviews with public defenders); see also Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165, 210–15 (2013) (noting the “hydra threat” that eliminating some constitutional violations at the state level through litigation in California may lead to constitutional problems throughout California’s many county jails). Joan Petersilia has described these conditions as “startlingly familiar” to and “closely mirroring” prison-condition problems at the state level. 86 Petersilia, supra note 68, at 349–50. She has predicted that “a surge of county-level Eighth Amendment suits is likely to emerge.” 87 Id. at 350. And since the Ninth Circuit has now held that realignment does not divest the state of responsibility for the conditions of the jails housing those prisoners, 88 See Armstrong II, 732 F.3d at 961–62. questions about state liability are bound to be a part of future litigation.
3. Indigent Criminal Defense in Michigan. — Indigent criminal defense is another policy area that implicates federal, state, and local levels of governments. The Sixth Amendment, as interpreted by the Supreme Court in Gideon v. Wainwright, requires states to provide defense counsel to criminal defendants who cannot afford to hire their own. 89 See Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963). Many states, in turn, abdicate that responsibility to their local governments. A recent report of the American Bar Association found that nineteen states require their local governments to either fully fund or provide most of the funding for indigent criminal defense. 90 Holly R. Stevens et al., Ctr. for Justice, Law & Soc’y at George Mason Univ., State, County and Local Expenditures for Indigent Defense Services Fiscal Year 2008, at 5 (2010), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_expenditures_fy08.authcheckdam.pdf [http://perma.cc/9JXX-5MQQ]. Fewer than half of the states fully fund their indigent defense programs. 91 Id. Even states that fully or partly fund their indigent defense programs delegate significant administrative responsibilities to their local governments. 92 Id.
Michigan was an example of a state with a highly decentralized system of indigent criminal defense. 93 This changed in 2012 with the passage of state legislation adopting a statewide commission approach to indigent defense. See Margaret A. Costello, Fulfilling the Unfulfilled Promise of Gideon: Litigation as a Viable Strategic Tool, 99 Iowa L. Rev. 1951, 1974–75 (2014). As of 2007, Michigan law required county court chief judges to appoint defense lawyers to criminal defendants who could not afford one themselves. 94 Mich. Comp. Laws Ann. § 775.16 (West 2006) (amended 2013). Michigan counties were responsible for fully funding their own criminal defense programs, 95 Nat’l Legal Aid & Def. Ass’n, Evaluation of Trial-Level Indigent Defense Systems in Michigan 5 (2008), http://provinginnocence.org/attachments/article/546/NLADA%20Race%20to%20the%20Bottom%20Report.pdf [http://perma.cc/7M9H-GGL7]. directly from the county treasury. 96 Mich. Comp. Laws Ann. § 775.16.
In 2007, a putative class of criminal defendants sued the State of Michigan and the Michigan governor in Michigan state court 97 Criminal defendants bring these cases in state, rather than federal court, to avoid thorny questions about abstention. Federal courts are reluctant to step into indigent-defense issues when those issues are raised by criminal defendants with ongoing or just-completed state prosecutions. See Luckey v. Miller, 976 F.2d 673, 678–79 (11th Cir. 1992). Indigent-defense scholars and advocates have pressed reform measures that would permit federal courts to hear these kinds of cases. See, e.g., Cara H. Drinan, Am. Constitution Soc’y for Law and Policy, A Legislative Approach to Indigent Defense Reform 12 (2010), http://www.acslaw.org/files/ACS%20Issue%20Brief%20-%20Drinan%20Indigent%20Def%20Reform_0.pdf [http://perma.cc/34N5-CCTK] (proposing legislation that “expressly allows federal courts to provide a prospective remedy by declaring Younger abstention inapplicable in these types of suits”). and alleged that Michigan’s highly decentralized indigent-defense scheme violated their right to counsel. 98 Complaint ¶ 1, Duncan v. State, 774 N.W.2d 89 (Mich. Ct. App. 2009), http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=22107&libID=22077 (on file with the Columbia Law Review). The plaintiffs alleged that “[a]lthough the constitutional obligation to provide indigent persons with effective assistance of competent counsel rests with the State, Defendants have repeatedly abdicated that responsibility.” 99 Id. ¶ 85. Specifically, the plaintiffs brought section 1983 claims pursuant to the Sixth and Fourteenth Amendments and similar state constitutional claims. 100 Id. ¶¶ 154–181.
Michigan moved for summary disposition on several grounds, among them that the plaintiffs’ request for relief required the state to make changes that were legislative in nature—relief neither the courts nor the executive were empowered to make. 101 Brief on Appeal – Appellants State of Michigan and Governor Jennifer Granholm at 11, Duncan, 774 N.W.2d 89 (Nos. 139345, 139346, 139347), 2010 WL 1215034. The state also argued that the plaintiffs would be better served suing the local governments responsible for providing defense counsel, rather than the state itself. 102 Id.
Reflecting the complexity of abdication arguments, the Michigan courts struggled with the case. The trial and appellate courts found for the plaintiffs, 103 See Duncan v. Michigan, 832 N.W.2d 761, 765 (Mich. Ct. App. 2013) (describing the procedural history of the case). but the Michigan Supreme Court seemingly could not make a decision. In the span of eight months, it reversed itself twice. It first ruled in favor of the plaintiffs and summarily affirmed the appellate court’s denial of summary disposition. 104 Duncan v. State, 780 N.W.2d 843, 844 (Mich. 2010) (denying defendants’ motion for summary disposition because the case was “at its earliest stages and, based solely on the plaintiffs’ pleadings in this case, it [wa]s premature to make a decision on the substantive issues”). Soon after, it reversed itself on a motion for reconsideration and granted the state’s motion for summary disposition on the grounds stated in the dissent of the appellate court decision: 105 Duncan v. Michigan, 784 N.W.2d 51, 51 (Mich. 2010). that the case was not justiciable because it asked state officials to change Michigan’s decentralized system of indigent defense, which was a legislative, and not an executive, decision. 106 Duncan, 774 N.W.2d at 168–70 (Whitbeck, J., dissenting). Just four months later, the court reversed itself again on another motion for reconsideration and found for the plaintiffs on the ground that the reconsideration had been improper. 107 Duncan v. Michigan, 866 N.W.2d 407, 407 (Mich. 2010). The political balance of the Michigan Supreme Court also shifted during this timeframe. See Costello, supra note 93, at 1971 n.154. Since then, the case has gone back down to the trial court and up again to the Michigan Supreme Court, which finally dismissed the appeal in 2013. 108 See Duncan v. State, 832 N.W.2d 752 (Mich. 2013) (mem.). That dismissal allowed trial to begin, over six years after the case was filed. Just months later, Michigan legislatively reformed its system of indigent defense, creating enforceable minimum standards and earmarking additional funding for local governments to provide counsel. 109 See Costello, supra note 93, at 1974–75.
New York made similar arguments when criminal defendants alleged that New York’s indigent defense scheme was unconstitutional. New York moved to dismiss the charges as nonjusticiable because (1) New York’s decision to delegate indigent defense to local governments was a legislative decision not remediable by courts and (2) local governments were indispensable parties that must be joined for litigation to proceed. 110 See Brief for Respondents at 31–36, Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010) (No. 8866-07), 2009 WL 6409872; Memorandum of Law in Support of Defendant’s Motion to Dismiss at 16–17, 27–28, Hurrell-Harring v. State, No. 8866-07 (N.Y. Sup. Ct. Apr. 4, 2008). The parties litigated these issues all the way up to New York’s highest court, which ruled against the state and held that the legislative decision to decentralize the provision of indigent defense did not insulate the state from the Sixth Amendment. 111 Hurrell-Harring v. State, 15 N.E.2d 217, 227 (N.Y. 2010) (“It is . . . possible that a remedy . . . would necessitate the appropriation of funds and perhaps . . . some reordering of legislative priorities. But this does not amount to an argument upon which a court might be relieved of its essential obligation to provide a remedy for violation of a fundamental constitutional right.”).
State abdication arguments in the indigent-defense context are live in contemporary litigation, and the doctrine is fluid. Although Michigan and New York courts ultimately dismissed state abdication arguments, an Idaho court recently ruled in favor of Idaho on similar arguments. In a motion to dismiss, Idaho and state officials argued that Idaho’s decentralized system of indigent defense absolved the state of responsibility because “[n]o statute gives the Governor or the Public Defense Commission supervisory authority over persons who provide indigent public defender services or the County officers who are required by statute to provide for such services.” 112 Memorandum in Support of Motion to Dismiss at 5, Tucker v. State, CV-OC-2015-10240 (Idaho Dist. Ct. Jan. 20, 2016) (on file with the Columbia Law Review); see also id. at 10 (“Of course, the Governor and Commission members have political or governmental interests in improving Idaho’s indigent defense system, but they have no legal authority to address the system as requested in the Complaint.”).
The court accepted the state’s abdication argument. It found that the case presented “troubling allegations regarding problems with the public defender system” and expressed “sympath[y] with Plaintiffs’ plight.” 113 Tucker, slip op. at 31 (on file with the Columbia Law Review). It held that “[u]nquestionably, the State is ultimately responsible for ensuring constitutionally-sound public defense.” 114 Id. at 5. But it also held that (1) the plaintiffs lacked standing to bring suit because the alleged harm was not caused by the defendants 115 Id. at 22–23 (noting the legislature and the county commissioners are “the principal bodies with the power to affect the policy . . . and systemic changes Plaintiffs seek” and neither state officials nor the governor “has the power and authority to act alone to redress Plaintiffs’ grievances”). The court went on to note: “Certainly, both [the legislature and the county commissioners] have moral, political, and public power to pressure the legislature of the counties to act, but neither have the ability to require it.” Id. and (2) the “separation of powers doctrine” prevented the court from “shap[ing] the institutions of government in such fashion as to comply with the laws and the Constitution.” 116 Id. at 31. The court held that it could not “legislate specific standards” or “provide funding to enact those standards.” 117 Id.
Suing states for violations of the Sixth Amendment right to counsel for indigent defendants is gaining steam as a litigation tactic, and state abdication arguments will continue to be relevant in the coming years. 118 In addition to the litigation in Idaho, indigent criminal defendants sued California recently for violating the Sixth Amendment right to counsel. See Complaint, Phillips v. State, No. 15CECG02201 (Cal. Super. Ct. Apr. 11, 2016), http://www.aclu.org/sites/default/files/field_document/file_stamped_phillips_v_state_of_california_complaint.pdf [http://perma.cc/SQY5-55U4]. California initially filed a demurrer on abdication grounds, see generally Memorandum of Points and Authorities in Support of Demurrer of Defendants State of California and Governor Edmund G. Brown Jr. at 5–8, Phillips, No. 15CECG02201 (on file with the Columbia Law Review) (arguing that California law delegating the provision of indigent defense to local governments absolves California of any possible wrongdoing), which the trial court denied, see Phillips, slip op. at 2–4 (on file with the Columbia Law Review) (“[I]f the State created an indigent defense system that is systematically flawed and underfunded, Stanley indicates that the State remains responsible, even if it delegated this responsibility to political subdivisions.” (citing Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707, 713 (4th Cir. 1996))).
4. Election Law in Alabama. — States play an important role in administering federal election laws. 119 This section draws from a previous piece exclusively about election law. Weinstein-Tull, Election Law Federalism, supra note 11 (arguing that state–local relationships in election law can frustrate federal election law). In particular, the National Voter Registration Act of 1993 (NVRA) requires states to offer voter-registration opportunities in a variety of state offices, 120 52 U.S.C. §§ 20501–20511 (Supp. 2015). the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires states to transmit ballots to military and overseas voters at least forty-five days before a federal election, 121 52 U.S.C. §§ 20301–20311. and the Help America Vote Act (HAVA) requires states to update their voting machine technology. 122 52 U.S.C. §§ 20901–21145. Each statute imposes responsibilities directly onto states, even though many states delegate significant election responsibilities to their local governments. 123 See Justin Weinstein-Tull, A Localist Critique of Shelby County v. Holder, 11 Stan. J. C.R. & C.L. 291, 296–98 (2015) [hereinafter Weinstein-Tull, Localist Critique of Shelby County] (describing the many ways states delegate their election-administration responsibilities to local governments).
As in the other case studies described above, states attempt to evade federal election laws by arguing, in litigation, that their decentralized elections systems excuse them from responsibility. 124 See supra sections I.A.1–.3. I highlight Alabama as an example here, but it is not alone in making these arguments. 125 See generally Weinstein-Tull, Election Law Federalism, supra note 11, at 764–71 (describing election law abdication arguments in litigation by Illinois, Ohio, Missouri, New York, Alabama, California, Vermont, and Texas).
Alabama employs a decentralized elections scheme. In the context of absentee voting, for example, Alabama designates county circuit clerks to be “absentee election manager[s]” who administer the absentee ballot process. 126 See Ala. Code § 17-11-2 (2007). If the circuit clerk declines the responsibility, the county may appoint an alternate. Id. The absentee election manager accepts absentee ballot applications and transmits those ballots. 127 See id. §§ 17-11-4 to -5.
The United States has sued Alabama repeatedly for failing to comply with the federal election statutes described above. 128 The Department of Justice sued Alabama in 2006, 2008, and 2012 for violating UOCAVA and in 2006 for violating HAVA. See Voting Section Litigation, U.S. Dep’t of Justice, http://www.justice.gov/crt/voting-section-litigation [http://perma.cc/752L-H9M7] (last visited Mar. 10, 2017). In 2012, the United States sued Alabama for failing to comply with UOCAVA. 129 United States v. Alabama, 857 F. Supp. 2d 1236 (M.D. Ala. 2012). Alabama argued that it was not the proper defendant because under state law, local officials—and not state officials—were responsible for transmitting absentee ballots. 130 See id. at 1238 (describing Alabama’s argument that “it is not its responsibility to ensure compliance with UOCAVA, especially where local county officials transmit ballots and administer an election”). The state argued that Congress did not intend “to cast aside general principles of legal liability or to intrude upon the State’s sovereign prerogative to organize its internal affairs, i.e., which officials have which duties and to whom they report, as it sees fit.” 131 State Defendants’ Third Response to the Court’s Opinion and Order (Doc. 8) and Motion to Dissolve Injunction at 3 n.1, Alabama, 857 F. Supp. 2d 1238 (No. 2:12-cv-00179-MHT-WC); see also id. (“Accordingly, while it is undisputed that UOCAVA ballots requested in advance of January 28, 2012 were not transmitted by that same date, it does not necessarily follow that the correct defendants are before this Court such that any relief can issue.”). Later in the litigation, Alabama described its difficulties enforcing UOCAVA given the independence of local election officials:
Most local election officials are cooperative and diligent. In some cases, though, local officials will not cooperate with the Secretary of State. For example, the [Absentee Election Manager] of Jefferson County, Alabama, when it was clear that the county would miss the deadline, refused to allow state officials to assist in ballot transmission in 2010, even though state officials drove from Montgomery to Birmingham twice to offer their help . . . . If a local official refuses to cooperate or provide information to the Secretary of State, the Secretary has no authority to compel the action of a local official. The situation is often resolved through persuasion, but the fact remains that the Secretary cannot be in 67 counties at once, and cannot compel a local official to mail a ballot by a particular date. 132 State Defendants’ Response to the United States’ Motion for Summary Judgment, Declaratory Judgment, and Permanent Injunctive Relief at 5–6, Alabama, 857 F. Supp. 2d 1236 (No. 2:12-cv-00179-MHT-WC) (citations omitted).
Alabama noted that the secretary of state “cannot fire an elected Probate Judge, or an Absentee Election Manager,” who is elected by county voters and replaced or disciplined by county boards. 133 Id. at 6. “So while the Defendants can inform and train local election officials—and always want to look for ways to improve in doing so—the Defendants cannot perform the duties of local election officials.” 134 Id.
The court disagreed with Alabama and noted the “explicit” statutory language that “[e]ach state” shall transmit ballots to military and overseas voters to comply with UOCAVA. 135 Alabama, 857 F. Supp. 2d at 1238 (“Alabama’s contention that it is not its responsibility to ensure compliance with UOCAVA, especially where local county officials transmit ballots and administer an election, is meritless.”). But Alabama’s description of conflicts with local election officials demonstrates the kind of constraints that state election laws can place on compliance with federal election laws.
State abdication arguments like these are common in election litigation. They have been made by state officials in Missouri, Ohio, New York, California, Vermont, Texas, Louisiana, and Mississippi, as recently as 2015. 136 See Weinstein-Tull, Election Law Federalism, supra note 11, at 764–71. In most cases, courts reject these arguments and find that liability rests on the state, despite delegation to local governments. 137 See id.
But not all of the election cases are so clear. In United States v. Missouri, the United States sued Missouri for noncompliance with section 8 of the NVRA, which regulates voter-list management. 138 535 F.3d 844, 846 (8th Cir. 2008). Missouri argued that it was not responsible for noncompliance because the state legislature delegated election-administration responsibilities to local governments and neither state law nor the NVRA gave state officials the authority to enforce the NVRA against local governments. 139 See United States v. Missouri, No. 05-4391-CV-C-NKL, 2006 WL 1446356, at *6–7 (W.D. Mo. May 23, 2006), rev’d, 535 F.3d 844 (8th Cir. 2008). The court mostly disagreed and found that local noncompliance bore on whether Missouri failed to oversee compliance with the NVRA. 140 Missouri, 535 F.3d at 850. The court held, however, that Missouri could not be required to enforce the NVRA against its local election officials. 141 Id. at 851. The court declined to shift the burden of enforcing compliance onto Missouri “without clear direction from Congress.” 142 Id. at 851 n.3.
B. Other Examples
These four case studies demonstrate examples of delegation and abdication across federal law. Other examples exist, both inside and outside of litigation.
Take language accommodation in education. Education responsibilities tend to be decentralized from states to local school districts, but federal laws hold states responsible for different parts of the educational system. 143 See, e.g., infra note 147 (describing obligations of the Equal Educational Opportunities Act, Title IV of the Civil Rights Act of 1964, and the Fourteenth Amendment). Plaintiffs have successfully challenged state abdication of federal education responsibilities to local school districts. In Idaho Migrant Council v. Board of Education, for instance, a nonprofit organization sued Idaho’s state education agencies for failing to supervise local school districts’ compliance with obligations imposed by the Equal Educational Opportunities Act, Title VI of the Civil Rights Act of 1964, and the Fourteenth Amendment to ensure that students with limited English language proficiency be given instruction that addressed their language needs. 144 647 F.2d 69, 70 (9th Cir. 1981).
The state agencies made abdication arguments. They argued that Idaho law made local school districts responsible for administering schools, making the state agencies the wrong defendants. 145 Brief for Defendants-Appellees at 5–14, Idaho Migrant Council, 647 F.2d 69 (No. 79-4660) (on file with the Columbia Law Review). Furthermore, the agencies argued that the relief the plaintiffs were requesting exceeded the agencies’ authority. 146 Id. at 12–13 (“The [plaintiff] is asking this Court to order conduct which plainly exceeds the State Board of Education’s statutory responsibility.”).
Relying on both state and federal law, the Ninth Circuit rejected these arguments. It cited Idaho law, which imposed supervisory authority on the state agencies. 147 Idaho Migrant Council, 647 F.2d at 71. It also held that the federal laws at issue—the Equal Employment Opportunity Act and Title VI of the Civil Rights Act of 1964—specifically placed responsibilities on the state, rather than the local governments. 148 Id. The court concluded that “the State Agency is empowered under state law and required under federal law to ensure that needs of students with limited English language proficiency are addressed.” 149 Id.
Courts have also heard abdication arguments in the context of desegregation. When a South Carolina school district sought to hold the state partially liable for desegregation remedies, the state argued that its delegation of authority to the local school districts satisfied its own responsibility to desegregate. 150 Brief for Appellants at 24, Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707 (4th Cir. 1996) (No. 95-1827(L)), 1995 WL 17847225 (arguing “when the District has the power and means to eliminate any remaining consequences of segregation, the State may permit the District to do so, and the State may not be required to pay for the further desegregation or to discharge any, arguendo, obligation to do so directly itself”). The Fourth Circuit held that South Carolina was not responsible for the desegregation plan costs, but only because the plaintiffs had sued just the school district. Had they chosen to sue the state as well, the state could not avoid its responsibility through delegation. 151 See Stanley, 84 F.3d at 713 (“Even if a state gives its local school districts the power and means to remedy segregation, it can still be sued by the students in those districts for its failure to take steps to dismantle a dual educational system that it created.”).
California officials have also made abdication arguments in the context of desegregation. They moved to be removed from a segregation case and argued “that even if they engaged in de jure segregation in the past, they are now without power to remedy any segregation still existing in the Los Angeles schools, because the responsibility for school desegregation in California rests with the local school boards.” 152 L.A. Branch NAACP v. L.A. Unified Sch. Dist., 714 F.2d 946, 949 (9th Cir. 1983). The Ninth Circuit admitted that “[t]he issue is a difficult one” but ruled for the plaintiffs because “California law does allocate a role to each of the state defendants in achieving and maintaining desegregated schools.” 153 Id. Michigan has made similar arguments, which the Sixth Circuit rejected because the state controlled its local governments. 154 United States v. Sch. Dist. of Ferndale, 577 F.2d 1339, 1346–48 (6th Cir. 1978) (holding that Michigan could be held jointly liable for segregated schools with the local school districts because of “the substantial control exerted by Michigan state officials over local school operations” and because the state “had consistently provided funding and other assistance to the local district”).
Abdication exists outside litigation as well. States can exist in a state of abdication even before they make abdication arguments in litigation. We would expect the same compliance and representational concerns, described below, 155 See infra section II.A. to attach to prelitigation abdication.
Consider the case of marriage licenses. Three months after the Supreme Court mandated marriage equality in Obergefell v. Hodges, 156 135 S. Ct. 2584 (2015). a clerk in a small Kentucky county refused to issue marriage licenses to gay applicants. 157 Alan Blinder & Richard Pérez-Peña, Kentucky Clerk Denies Same-Sex Marriage Licenses, Defying Court, N.Y. Times (Sept. 1, 2015), http://www.nytimes.com/2015/09/02/us/same-sex-marriage-kentucky-kim-davis.html (on file with the Columbia Law Review). The clerk, having been elected by the people of her county and sheltered by state law that provided few means of removing her, stood her ground. 158 Chris Geidner, Few Options to Remove Kentucky Clerk from Office, Buzzfeed (Sept. 2, 2015, 5:44 pm), http://www.buzzfeed.com/chrisgeidner/it-would-be-very-difficult-to-remove-kentucky-clerk-from-off [http://perma.cc/C6LB-ERSA]. The governor of Kentucky claimed that only an act of the state legislature could remove the clerk, and the governor was unwilling to call a special session at taxpayer expense. 159 Press Release, State of Ky., Gov. Beshear’s Statement on County Clerks, Marriage Licenses in Kentucky (Sept. 1, 2015), http://migration.kentucky.gov/newsroom/governor/20150901statementonmarriagelicenses.htm [http://perma.cc/ZD2A-JDV7] (“The legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve her of her statutory duty by executive order or to remove her from office.”). Although Kentucky did not make these arguments in court, this is another example of a state strategically using abdication for political purposes, resulting in noncompliance with federal law.
Local justice systems may also be sites of abdication. States authorize local governments to create and fund local justice systems, including local courts, prosecutors, and police. Many of these institutions enforce and apply state law. 160 See, e.g., Ron Malega & Thomas H. Cohen, Bureau of Justice Statistics, U.S. Dep’t of Justice, State Court Organization, 2011, at 3 tbl.1, 8 tbl.8 (Nov. 2013), http://www.bjs.gov/content/pub/pdf/sco11.pdf [http://perma.cc/GL97-MVLF]. But they are also governed by numerous federal constitutional guarantees that attach to states, like the Sixth Amendment right to counsel and the Fourteenth Amendment right to due process. Meanwhile, state oversight of local courts is varied. States designate different kinds of state bodies with different powers—including chief justices and judicial councils—as administrative authorities. 161 See Nat’l Ctr. for State Courts, Governance of the Judicial Branch, http://data.ncsc.org/QvAjaxZfc/QvsViewClient.aspx?public=only&size=long&host=QVS%40qlikviewisa&name=Temp/fd3b4debc5b24e2b94be593acecd3988.html [http://perma.cc/63LJ-G9DE] (last visited Jan. 30, 2017) (listing the top authority of each state’s judicial branch and the sources of its authority); Nat’l Ctr. for State Courts, Judicial Councils and Conferences, Authority, and Year Established, http://data.ncsc.org/QvAjaxZfc/QvsViewClient.aspx?public=only&size=long&host=QVS%40qlikviewisa&name=Temp/a047997597e940738cad7d337468d2ae.html [http://perma.cc/7MQA-RECG] (last visited Jan. 30, 2017) (providing the names and sources of authority for judicial councils in every state). The extent to which states deserve responsibility for the actions of their local justice systems is an open question that awaits future research into those state–local relationships, but state and federal laws suggest they might.
Finally, education may be another site of abdication outside of litigation. In Louisiana, a state law permitted teachers to use outside materials to critique theories of evolution. 162 Louisiana Science Education Act, La. Stat. Ann. § 17:285.1(C) (repealed 2010) (permitting teachers to “use supplemental textbooks and other instructional materials to help students understand, analyze, critique, and review scientific theories in an objective manner, as permitted by the city, parish, or other local public school board . . .”). One commentator has described how that law allowed state legislators to ignore evidence that local school districts are teaching creationism. 163 See Zack Kopplin, The Bible v. the Constitution: Politicians, School Boards, Principals, and Teachers Are Pushing Creationism on Kids, Slate (June 2, 2015, 1:46 PM), http://www.slate.com/articles/health_and_science/science/2015/06/louisiana_science_education_school_boards_principals_and_teachers_endorse.html [http://perma.cc/R6TB-T7RS]; Zack Kopplin, Creationism Whistleblower: ‘Academic Freedom’ Is Sneak Attack on Evolution, Daily Beast (Dec. 28, 2015, 12:05 am), http://www.thedailybeast.com/articles/2015/12/28/creationism-whistleblower-academic-freedom-is-sneak-attack-on-evolution.html/ [http://perma.cc/4K4Y-NXFU]; Zack Kopplin, Dismissing Darwin: Records Show Teachers and School Board Members Conspiring to Teach Creationism in Public School Science Class, Slate (Apr. 21, 2015, 12:39 pm), http://www.slate.com/articles/health_and_science/science/2015/04/creationism_in_louisiana_public_school_science_classes_school_boards_and.html [http://perma.cc/943C-QMQN].
C. Making Sense of the Existing Case Law
Each of the case studies above presents a similar dynamic, but important differences between the cases exist as well. This section describes those differences and then synthesizes the doctrine, noting the inconsistent ways courts deploy it.
The broadest difference between the studies is the kind of federal law at issue (statutory or constitutional) and whether the federal law targets states explicitly. The election laws are motivated by both constitutional and statutory laws that explicitly target states. The Elections Clause makes states responsible for determining “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” 164 U.S. Const. art. 1, § 4, cl. 1. It also gives Congress the authority to “make or alter” those laws, 165 Id. which Congress has exercised in the form of the election laws discussed above. 166 See Weinstein-Tull, Election Law Federalism, supra note 11, at 776–78 (noting Congress enacted the election laws described in this Article pursuant to its Elections Clause authority); see also supra notes 119–121 and accompanying text (discussing the NVRA, UOCAVA, and HAVA). These laws explicitly require states to take action to satisfy federal election priorities—for example, to transmit absentee ballots a certain amount of time prior to an election. 167 See 52 U.S.C. § 20302(a)(8) (Supp. 2015).
Public-assistance laws like the Food Stamp Act and the Medicaid Act are statutory. 168 See Reynolds v. Giuliani, 506 F.3d 183, 186 (2d Cir. 2007) (describing statutory litigation pursuant to food-stamp, Medicaid, and cash-assistance statutes). In these laws, the federal government offers money to states to administer the programs. 169 See Sugarman, supra note 33, at 124; see also Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev. 663, 669 (2001) [hereinafter Weiser, Constitutional Architecture] (noting New Deal federal programs “called for state implementation of federal programs mostly to distribute federal benefits—such as unemployment insurance and Aid to Families with Dependent Children . . . [and] [s]uch programs insisted on . . . uniformity . . . but also left important discretion with state agencies to implement the programs within federal requirements”). The Spending Clause empowers Congress to enact these laws, but unlike in the elections context, states are not already required to administer public-assistance programs as a matter of constitutional law.
The indigent-defense context, by contrast, reflects a purely constitutional requirement on states. The federal requirement there—that states must provide counsel to criminal defendants who cannot afford to hire their own—comes from the Sixth Amendment, as interpreted by the Supreme Court in Gideon. 170 See Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963).
The case of incarceration is a hybrid constitutional–statutory context, with the most tenuous connection to state liability of the studies above. The plaintiffs in the Armstrong case brought both federal statutory (ADA) and constitutional (Eighth Amendment) claims. 171 See Armstrong I, 622 F.3d 1058, 1063–64 (9th Cir. 2010). Neither the ADA nor the Eighth Amendment, however, explicitly imposes liability on states.
A second difference between the policy areas is how each federal responsibility is funded by state and federal governments. The federal government partly funds public-assistance administration. 172 See supra note 34. Some limited federal money is available to states to comply with federal election laws, but that money rarely covers the full cost of compliance with the full set of federal election laws. 173 Because of the broad powers the Elections Clause confers, the federal government may require states to administer federal programs—here, voter registration and absentee ballots—without the promise of linked federal money. See Ass’n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 836–77 (6th Cir. 1997) (noting that unlike the Spending Clause, the Elections Clause “specifically grants Congress the authority to force states to alter their regulations regarding federal elections . . . . and does not condition its grant of authority on federal reimbursement”). The Help America Vote Act of 2002, 52 U.S.C. §§ 20901–21145 (Supp. 2015), provides some federal funding, but that funding is “quite limited.” States and local governments bear the financial burden of funding elections. See Alec C. Ewald, The Way We Vote: The Local Dimension of American Suffrage 3–4 (2009). The federal government provides no funding for state indigent-defense efforts, and no federal agency provides oversight or rulemaking guidance. 174 The Department of Justice’s Access to Justice program does attempt to encourage nonfederal governments to comply with the Sixth Amendment by generating policy and best-practice reports, offering training and some grants, and filing statements of interest in ongoing right-to-counsel litigation. See U.S. Dep’t of Justice, Accomplishments, Access to Justice, http://www.justice.gov/atj/accomplishments [http://perma.cc/XV92-FD3S] (last visited Jan. 22, 2017). The Idaho decision notes that some might call Gideon and state requirements that local governments offer indigent defense “an unfunded mandate.” Tucker v. State, No. CV-OC-2015-20140, slip op. at 3 (Idaho Dist. Ct. Jan. 20, 2016). Neither the Eighth Amendment nor the ADA provides funding for states to ensure their prisons and jails comply with constitutional and statutory standards. 175 Ross Sandler and David Schoenbrod tell the fascinating story of how local governments, with the help of the federal Advisory Commission on Intergovernmental Relations, unsuccessfully attempted to push back against the costly and federally unfunded ADA requirement that local governments create curb ramps. See Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government 39–43 (2003).
A final difference between the cases is the legal mechanisms that bring them into court. When federal statutes exist, plaintiffs can bring suit pursuant to statutory causes of action. The federal election laws, for example, provide causes of action against states for noncompliance. 176 See Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20307(a); National Voter Registration Act, 52 U.S.C. § 20510(a); Help America Vote Act, 52 U.S.C. § 21111. When the federal law at issue is court-created, plaintiffs bring claims pursuant to section 1983. 177 See, e.g., Complaint ¶ 12, Duncan v. State, 774 N.W.2d 89 (Mich. Ct. App. 2009) (Nos. 278652, 278858, 278860), http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=22107&libID=22077 [http://perma.cc/Q2TJ-K9SS]. But as the Second Circuit noted in Reynolds v. Giuliani, section 1983 may impose a different or stricter standard for finding state liability. 178 See 506 F.3d 183, 190 (2d Cir. 2007). The indigent-defense cases have not mentioned section 1983’s elevated standard. Plaintiffs in the incarceration cases have pushed back against the idea that the section 1983 standard is relevant in these cases, arguing that the conduct at issue is the state’s failure to supervise and comply with the law, not the local governments’ failures to properly administer the federal program. 179 See Brief in Opposition at 19–20, Brown v. Armstrong, 134 S. Ct. 2725 (2014) (mem.) (No. 13-1056), 2014 WL 1783194. In any case, courts have not spoken on this issue in a consistent way.
On the whole, abdication cases have not congealed into a consistent doctrine. Although many abdication cases ultimately find that states cannot avoid federal responsibilities by sending them to local governments, these cases reach their conclusions in different ways. Some adopt a supervisory theory of liability and hold that abdication frustrates the state’s obligation to supervise its local governments. 180 See Henrietta D. v. Bloomberg, 331 F.3d 261, 284–87 (2d Cir. 2003). Others rely on an equitable sense that states should not be able to “shirk” their federal responsibilities by giving them away to a third party. 181 See Armstrong I, 622 F.3d 1058, 1072 (9th Cir. 2010). Still others find state liability on efficiency grounds. 182 See Harkless v. Brunner, 545 F.3d 445, 452 (6th Cir. 2008) (“[I]f every state passed legislation delegating NVRA responsibilities to local authorities, the fifty states would be completely insulated from any enforcement burdens, even if NVRA violations occurred throughout the state.”). Some cases are solicitous of state law and find state responsibility based on state law relationships. 183 See Robertson v. Jackson, 972 F.2d 529, 532 (4th Cir. 1992) (noting Virginia’s state law establishing state control over local officials processing food-stamp applications); Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69, 71 (9th Cir. 1981) (describing the Idaho state laws that empower the state to supervise local school districts). Others hardly mention state law. 184 See United States v. Alabama, 857 F. Supp. 2d 1236, 1238 (M.D. Ala. 2012) (finding Alabama responsible for the conduct of its local governments based on federal law, not Alabama’s own state law, and finding “Alabama’s contention that it is not its responsibility to ensure compliance with UOCAVA, especially where local county officials transmit ballots and administer an election” to be “meritless”). The opinions rarely cite to one another, and advocates only rarely cite to other areas of the law when facing abdication arguments. 185 There are a few, limited exceptions. See, e.g., Appellee’s Brief at 36, United States v. Missouri, 535 F.3d 844 (8th Cir. 2008) (No. 07-2322), 2007 WL 6603869 (citing to abdication cases in other policy areas); Plaintiffs’ Opposition to Defendants State of California and Governor Edmund G. Brown Jr.’s Demurrer at 6–7, Phillips v. State, No. 15CECG02201, 2016 WL 1573199 (Cal. Super. Ct. Apr. 11, 2015), 2015 WL 10711176 (same).
In addition, some courts accept abdication arguments. In the public-assistance context, the Second Circuit allowed New York to escape liability even though its local governments had violated provisions of the Food Stamp and Medicaid Acts. 186 See Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007). It did so because it held that section 1983 imposed liability only if New York failed to supervise its local governments and if that failure was the primary cause of the noncompliance. 187 Id. at 191–93. Because New York had, to some extent, responded to the noncompliance of its local governments, it was not liable. 188 See id. at 195–97. The court also rejected the separate argument that the Food Stamp and Medicaid Acts created a nondelegable duty on states to administer the programs so as to ensure compliance by all of their local agencies. 189 Id. at 193–95.
In the elections context, the Eighth Circuit held that while local noncompliance with a federal election law bore on whether the state failed to oversee compliance with the law, the state could not be required to enforce the law against its local election officials. 190 Missouri, 535 F.3d at 851. The court noted that neither the federal nor state law provided a cause of action for the state to enforce the law against its local governments. 191 Id. And it rejected the United States’s “policy” argument that the state was better positioned to enforce the law against its local governments than the federal government. 192 Id. at 851 n.3.
And in the indigent-defense context, an Idaho court held that Idaho’s delegation of its Sixth Amendment responsibilities to local governments absolved the Idaho governor and other state officials from responsibility for compliance with those laws. 193 See Tucker v. State, No. CV-OC-2015-20140, slip op. at 29 (Idaho Dist. Ct. Jan. 20, 2016) (on file with the Columbia Law Review).
In sum, the doctrine courts use to resolve abdication arguments, to the extent it exists at all, is more a collection of vague arguments than a stable set of principles.
II. Understanding Abdication
Abdication arises from absence: absence of state supervision and perceived absence of state responsibility and control. This Part describes the consequences and causes of that absence. It argues that abdication creates structural barriers to compliance with federal law both before and during litigation. Before litigation, abdication arguments reflect a belief on the part of state officers that they either are not responsible for ensuring local compliance with the federal law or are not empowered by the state to do so (front-end barriers). Postcomplaint, abdication creates litigation costs that delay and block lawsuits seeking to enforce federal law (back-end barriers). In addition, abdication creates representational harm by weakening the relationship between the public and its governing representatives. This Part then explores the factors—both state–local and federal—that tend to create states of abdication. It argues that abdication is a consequence of superimposing federal responsibilities onto the complicated preexisting legal and political relationships between states and their local governments.
Abdication complicates the chain of responsibility for federal law by obscuring the identity of the actor responsible for compliance. As described above, many federal laws place responsibility for compliance onto states. When states abdicate those responsibilities to local officials, they believe they also shift responsibility for compliance with those laws downward. 194 See infra section II.A.1. Abdication thus creates ambiguity—practical and legal—about the governmental body ultimately responsible for compliance.
That ambiguity has two important consequences. First, it makes enforcing abdicated federal law difficult. Because states believe they are not responsible for compliance with laws they have abdicated, those laws are likely to remain out of compliance at the statewide level. But policing noncompliance at the local level carries its own difficulties; it is impractical at best and impossible at worst.
Second, the disconnect between abdicated federal laws and the actors responsible for complying with them causes representational harms. Decentralizing administration of federal laws down to the local level diminishes governmental accountability. Further, abdication can silence political dissent. Those who suffer from noncompliance with abdicated federal laws—those who do not receive adequate legal representation, who face difficult prison conditions, and who are disenfranchised, to use the examples from Part I—are less able to communicate their unhappiness with noncompliance because of the noncompliance.
1. Compliance Costs. — Abdication creates a number of conditions likely to lead to noncompliance with federal law. It creates front-end and back-end barriers to state-level enforcement of federal law and as a consequence pushes noncompliance down to the local level, where it is difficult to find and fix. Put simply, abdication creates state-level roadblocks to enforcing federal law. But local-level enforcement is often infeasible, creating a Catch-22 for the federal government and advocates who hope to enforce federal law.
Perhaps because of this Catch-22, widespread noncompliance exists with the federal laws at issue in at least three of the four case studies above. In the context of incarceration in California, one contemporary commentator has noted that realignment—California’s attempt to decrease its state prison population by giving county jails jurisdiction over many lesser offenders—has resulted in worsening conditions in those county jails. 195 Petersilia, supra note 68, at 348–51 (noting the decrease in space for prisoner beds, the increase in violent fights, and the increasing problems with providing adequate medical care at the local level since realignment).
In the context of indigent defense, commentators have noted that nationally, states have failed to fulfill the promise set out by the Sixth Amendment. 196 See Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. Rev. L. & Soc. Change 427, 429 (2009) (“[D]espite voluminous documentation of the indigent defense crisis, the crisis persists.”); David Carroll, Commentary, Gideon’s Despair: Four Things the Next Attorney General Needs to Know About America’s Indigent Defense Crisis, Marshall Project (Jan. 2, 2015), http://www.themarshallproject.org/2015/01/02/four-things-the-next-attorney-general-needs-to-know-about-america-s-indigent-defense-crisis#.zrqcEDRZz [http://perma.cc/6BBT-NKU5] (“Fifty years after the U.S. Supreme Court first determined in Gideon v. Wainwright that states are responsible for providing public lawyers to poor defendants, the U.S. Department of Justice has found that right-to-counsel services in America ‘exist in a state of crisis.’”). Former Attorney General Eric Holder has stated that “America’s indigent defense systems exist in a state of crisis.” 197 Eric Holder, U.S. Attorney Gen., Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), http://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-annual-meeting-american-bar-associations [http://perma.cc/5TX7-WQXL].
Widespread noncompliance also exists with respect to federal election laws. The recent Presidential Commission on Election Administration, as well as other recent surveys, described widespread noncompliance with election laws like NVRA and UOCAVA. 198 See Presidential Comm’n on Election Admin., The American Voting Experience 15–18 (2014), http://law.stanford.edu/wp-content/uploads/sites/default/files/publication/466754/doc/slspublic/Amer%20Voting%20Exper-final%20draft%2001-04-14-1.pdf [http://perma.cc/6GBD-Q7CW] (“[T]he election statute most often ignored, according to testimony the Commission received, is the National Voter Registration Act (NVRA or ‘Motor Voter’).”); see also Weinstein-Tull, Election Law Federalism, supra note 11, at 759–61 (describing widespread noncompliance with the NVRA, UOCAVA, and HAVA).
In states that have abdicated federal responsibilities, state officials do not believe they are responsible for ensuring local compliance. These beliefs constitute front-end barriers to statewide compliance with federal law. State filings illustrate these beliefs.
State officials point to the decentralized structure of their states to attempt to evade responsibility for noncompliance. Idaho state school officials, for example, when sued for noncompliance with the Equal Educational Opportunities Act, Civil Rights Act of 1964, and the Fourteenth Amendment for failing to provide instruction in different languages, spent many pages of their brief explaining Idaho’s decentralized system of school administration in service of their argument that local school districts, and not the state, were the bodies responsible for noncompliance. 199 Brief of Defendant-Appellees at 6–14, Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69 (9th Cir. 1981) (No. 79-4660) (arguing that the plaintiffs’ analysis “completely disregards the legal structure of Idaho’s public education system” and spending eight pages explaining how Idaho’s decentralized education system rebutted the plaintiff’s argument that the state agencies and the local school districts had a principal–agent relationship). These arguments are widespread in the state briefs filed in the abdication cases described in Part I. 200 See, e.g., Brief for State Defendant-Appellant at 4–11, Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) (Nos. 02-7022, 02-7074), 2002 WL 32442869 (explaining, in detail, the decentralized nature of “New York State’s Public Assistance Scheme”); Brief for Appellant at 8–15, Robertson v. Jackson, 972 F.2d 529 (4th Cir. 1992) (No. 91-2580) (explaining why, under Virginia law, local departments of social services were not agents of the state commissioner).
According to their court filings, state officials believe not only that they are not responsible for the actions of their local governments but also that they are powerless to comply with the statutes even if they wanted to. New York state officials, when challenged for noncompliance with federal law among local public assistance agencies, emphasized not only the decentralized structure of New York’s public-assistance programs but also the limited enforcement mechanisms that state law provided to state officials for overseeing and supervising their local governments. 201 See Brief for State Defendant-Appellant at 8–9, Henrietta D., 331 F.3d 261 (Nos. 02-7022, 02-7074), 2002 WL 32442869 (describing the “limited enforcement mechanism[s]” of the state agency). Alabama made a similar argument when it was sued for violating UOCAVA because its local governments failed to transmit ballots to military and overseas voters on time. 202 State Defendants’ Response to the United States’ Motion for Summary Judgment, Declaratory Judgment, and Permanent Injunctive Relief at 5–6, United States v. Alabama, 857 F. Supp. 2d 1236 (M.D. Ala. 2012) (No. 2:12-cv-00179-MHT-WC) (describing Alabama’s decentralized system of elections and the state’s lack of power over local elections officials). California officials did the same when they were sued because conditions in California county jails violated the ADA and the Eighth Amendment. 203 Defendant-Appellant’s Opening Brief at 3–5, Armstrong v. Brown, 732 F.3d 955 (9th Cir. 2013) (Nos. 12–16018, 12–17198) (arguing state law gave the counties “sole custody and jurisdiction” of state parolees placed in county jails for parole violations). Virginia officials did the same when sued for local-level violations of the Food Stamp Act. 204 Brief for Appellant at 15, Robertson, 972 F.2d 529 (No. 91-2580).
Claims by state officials that they are powerless to bring their local governments in line with federal law should of course be taken with a healthy dose of skepticism. Those arguments are self-serving and often (but not always 205 See United States v. Missouri, 535 F.3d 844, 850–51 (8th Cir. 2008) (noting that neither federal nor Missouri law empowered Missouri state officials to bring their local governments into compliance with the NVRA, and thus while local government noncompliance could be held against the state, the state could not be required to enforce the NVRA against its local government). ) ignored by courts.
On the other hand, coordinating compliance with positive federal obligations on states is a complex legal and political process that can require funding, legislative change, and sometimes cooperation from diverse state agencies and even the public. 206 See Sandler & Schoenbrod, supra note 175, at 107–08. Ross Sandler and David Schoenbrod, in their book on consent decrees against states and local governments, argue that while state officials are often defendants in lawsuits seeking to mandate compliance with federal laws, the federal duty holder is broader than just those officials: “The duty is in essence on society . . . but society is a slippery fellow for a judge to grab.” 207 Id. at 108.
And indeed, actions that some officials take once sued suggest their beliefs about state law are genuine. When Idaho Governor Butch Otter was sued for statewide violations of the Sixth Amendment, for example, he asked his state legislature for additional funds to remedy the noncompliance. 208 KBOI News Staff, Gov. Butch Otter Seeking Nearly 8 Percent Increase in Education Budget, KBOI2 (Jan. 11, 2016), http://kboi2.com/news/local/gov-butch-otter-the-state-of-idaho-is-healthy-and-strong [http://perma.cc/N94N-JJKH] (“Please join me in a commitment to ensuring that all Idaho citizens in every one of our 44 counties can avail themselves of this fundamental constitutional right. My budget recommends $5 million to implement the changes that you approve.”). Presumably, Governor Otter believed that he was either politically or legally constrained from complying with the federal law himself. 209 Idaho ultimately enacted a law that funded local indigent-defense programs and created greater state oversight over those programs. See David Carroll, Idaho Empowers State Commission with New Authorities and New Funding, Sixth Amend. Ctr. (Mar. 23, 2016), http://sixthamendment.org/idaho-empowers-state-commission-with-new-authorities-and-new-funding/ [http://perma.cc/ND8M-2KZB]. Other state officials who make abdication arguments are politicians who might otherwise support the policies being advocated by the lawsuits. That disconnect—between the beliefs of state officials and their statements in litigation—suggests genuine feelings of constraint by intrastate allocations of power.
But whether these state powerlessness arguments have legal merit is, in some sense, beside the point. Taken as a whole, the arguments demonstrate at the very least that state officials do not believe they are responsible for ensuring local compliance with the federal laws states push downward. That belief is likely to lead to noncompliance with federal law.
Abdication also creates postcomplaint, back-end barriers to state compliance with the federal law. As demonstrated above, no consistent nonabdication doctrine exists. Courts have admitted that abdication arguments present thorny legal issues, 210 See, e.g., L.A. Branch NAACP v. L.A. Unified Sch. Dist., 714 F.2d 946, 949 (9th Cir. 1983) (“The issue is a difficult one . . . .”). resulting in delayed litigation while the issues proceed up through the appeals system. 211 See, e.g., Duncan v. Michigan, 832 N.W.2d 761, 765–66 (Mich. Ct. App. 2013) (describing the procedural history of the case in which resolution of an abdication argument caused trial on the merits to be delayed by six years).
These barriers to statewide compliance with federal law push enforcement of those laws down to the local level, which presents its own challenges. Roderick Hills has argued that enforcing federal law at the local level is an impossible task for practical and institutional reasons. 212 See Hills, Dissecting the State, supra note 17, at 1218–23. Hills is writing about the disadvantages of federal laws that specifically attempt to empower local government at the expense of state autonomy. His analysis is relevant here, however, because his argument is that states are better suited to supervising local governments than the federal government, which is simply not equipped to monitor the vast landscape of local governments. Id. First, the federal government is not staffed to monitor the 40,000 local governments that administer federal law. 213 Id. at 1220. Hills suggests that the federal government would need to monitor not only compliance but also the structure of state–local relationships that might prevent or cause noncompliance. Id. (“[I]t is inconceivable that Congress could give sufficient attention to such minutiae of state-local relations, given that different states have radically different laws and political cultures that affect state-local relations.” (footnotes omitted)). States create new local governments frequently; the federal government would be hard pressed to keep up. 214 Id. at 1219 (noting the “promiscuous creation of local governments” by states). Hills also notes that the relatively unrepresentative nature of the federal government, as well as its partisan polarization, prevents the federal government from effectively policing local governments. As of 1998, federal representatives reported to an average of 600,000 constituents, and few individual representatives are motivated to correct the often small-scale noncompliance and intrastate inequality created by local noncompliance with federal law. 215 Id. at 1220. That number had risen to 700,000 constituents per representative by 2010. U.S. Census Bureau, Apportionment Data, http://www.census.gov/2010census/data/apportionment-data.php [http://perma.cc/68PP-U8D2] (last visited Mar. 18, 2017). In addition, political polarization at the federal level “prevents any consensus about enforcement from developing in the national legislature,” leaving local governments “free to pursue their own agendas.” 216 Hills, Dissecting the State, supra note 17, at 1221 (citing sources on political polarization and gridlock at the national level).
Election law illustrates the difficulties of finding noncompliance at the local level. Section 5 of the Voting Rights Act was originally enacted to address the practical problem of enforcing federal voting rights laws against the thousands of local governments capable of vote discrimination. 217 See supra note 23. Dale Ho, a prominent voting-rights advocate, has noted that “much of the practical value of section 5 was its effect in stopping dilutive practices, particularly at the local level, where the major political parties and advocacy groups rarely commit the resources necessary to litigate.” 218 Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675, 705 n.21 (2014). Ho and other voting-rights advocates have argued that the “battle for the ballot box” will be “fought in cities and small towns, at the level of county seats, school boards and city councils.” Sarah Childress, After Shelby, Voting-Law Changes Come One Town at a Time, PBS: Frontline (Aug. 8, 2013), http://www.pbs.org/wgbh/pages/frontline/government-elections-politics/after-shelby-voting-law-changes-come-one-town-at-a-time/ [http://perma.cc/U3AR-B5YE] (describing voting changes at the local level that could threaten voting rights); Michael Wines, Critics See Efforts by Counties and Towns to Purge Minority Voters from Rolls, N.Y. Times (July 31, 2016), http://www.nytimes.com/2016/08/01/us/critics-see-efforts-to-purge-minorities-from-voter-rolls-in-new-elections-rules.html (on file with the Columbia Law Review) (noting that after Shelby County, “blatant efforts to keep minorities from voting have been supplanted by a blizzard of more subtle changes” and efforts to suppress voting at the local level “have often gone unnoticed and unchallenged”). Absent serious scrutiny, local election problems can “pass under the radar, leaving some groups vulnerable in the absence of a firm regulatory regime.” 219 See Samuel Issacharoff, Beyond the Discrimination Model on Voting, 127 Harv. L. Rev. 95, 123 (2013) (discussing local government compliance with federal voting laws in the context of a proposed disclosure regime).
The Department of Justice made a similar argument in the context of a different voting statute, the NVRA, which requires states to regularly update their lists of registered voters. 220 See 52 U.S.C. § 20507 (Supp. 2015). In a case against Missouri, the government argued that the statute should not be read to require direct enforcement by the United States against local governments. 221 See Brief for the United States as Appellant at 36, United States v. Missouri, 535 F.3d 844 (8th Cir. 2008) (No. 07-2322), 2007 WL 6603868. The United States noted that “[t]he 44 states that are presently subject to the NVRA contain a total of 2,851 counties and have more than 5,500 local election jurisdictions responsible for voter registration.” 222 Id. “Forcing the United States to proceed locality-by-locality,” the government argued, “would severely strain the federal government’s resources and inevitably leave many NVRA violations unremedied.” 223 Id.
While fighting noncompliance at the local level may be impractical in some contexts (like voting), it is impossible in others. In the case of indigent defense, in which local noncompliance often arises because of inadequate funding, effective reform comes only from statewide remedy. 224 See Drinan, supra note 196, at 429–30 (noting many problems with indigent defense derive from funding issues, which are often a problem of state legislatures); Lisa R. Pruitt & Beth A. Colgan, Justice Deserts: Spatial Inequality and Local Funding of Indigent Defense, 52 Ariz. L. Rev. 219, 221–23 (2010) (demonstrating the tenuousness of indigent-defense programs when funded at the local level). Suing one local government, without the state, is ineffective when the local government has no money to remedy its violation. 225 See Briffault, Our Localism I, supra note 2, at 23 (noting that education-reform advocates have in the late-twentieth century come to see the state, rather than solely local governments, as a target for litigation in order to secure statewide remedies that minimize interlocal differences).
2. Representational Costs. — Abdication has deeper, less obvious consequences as well. Abdication weakens the relationship between the public and its governing representatives; it causes representational harm by diminishing the accountability of government officials and quieting public dissent. 226 I do not use the term “representational harm” in the specific way the Supreme Court has used it in redistricting cases. See Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 Calif. L. Rev. 1201, 1211–16 (1996) (discussing the Court’s creation of a relatively narrow representational-harm injury in order to avoid “unpalatable” judicial intervention).
To borrow a term from administrative law, abdication creates “slack” between the federal law administrators and the people those laws affect. In the administrative context, “slack” describes a situation in which difficulties monitoring the agent in a principal–agent relationship grant the agent some privacy from public view and therefore flexibility in administration. 227 See Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 68 (1998) (“Given that the citizenry cannot monitor its regulators costlessly—for knowing what regulators do requires considerable investments in time, information, and organization, all of which are stymied by the logic of collective action—regulators enjoy a certain amount of regulatory slack.”); Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. Econ. & Org. 167, 179 (1990) (“Slack allows a regulator to function without being perfectly observed by the polity.”). Here, the federal government’s decision to impose responsibilities onto states and the states’ delegation of federal responsibilities to local government creates slack at both the state–local and federal–state levels. The relative obscurity of local government administration of federal law gives local governments—as agents in the state–local, principal–agent relationship—more flexibility in how they administer federal law. That relative obscurity also permits states—as agents in the federal–state, principal–agent relationship—to evade their own responsibilities by making compliance harder to evaluate and enforce. 228 The problem of slack in abdication is actually a bit broader than this. The principal, in the ultimate principal–agent relationship of government, is the public. The public delegates lawmaking responsibilities to the government, which attempts to discharge those responsibilities by creating laws. Federal laws create new agents—states—responsible for compliance. State abdication creates yet another agent—local government—that shares compliance responsibilities. These principal–agent relationships each contain some slack. Steven Croley describes these relationships as slack “down the line.” Croley, supra note 227, at 24.
Slack permits states to evade accountability for their actions. In New York v. United States, the Court struck down a federal statute that forced states to take title to low-level radioactive waste unless the state could dispose of that waste—either itself or through an interstate compact—by a certain date. 229 505 U.S. 144, 153–54, 186–88 (1992). The Court based its decision in part on the idea that permitting the federal government to “conscript” states into passing laws that further federal interests diminished accountability for policymakers: 230 Id. at 178. The people would not know whom to hold responsible for the law. 231 Id. at 182–83 (noting that because citizens dislike waste-disposal sites near their homes, and federal and state officials have the authority “to choose where the disposal sites will be, it is likely to be in [their] political interest . . . to avoid being held accountable . . . for the choice of location”). Scholars have questioned the validity of the Court’s accountability concern. See Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and “Dual Sovereignty” Doesn’t, 96 Mich. L. Rev. 813, 824–30 (1998) (noting that in the context of federal laws imposing state responsibilities, the Court’s accountability concern proves too much—it applies equally well to any cooperative federalism program, not just those that commandeer).
This concern applies with even more force in the abdication context. In New York, the Court worried that federal–state slack diminished political accountability. 232 New York, 505 U.S. at 168–69. In the abdication context, that slack exists at all three levels of government: federal, state, and local. A prospective overseas military voter who does not receive a ballot in time to vote—in violation of the UOCAVA—does not know whether his or her disenfranchisement was caused by federal officials (who enacted and enforce the law), state officials (responsible for complying with the law), or local officials (tasked with administering the law).
Abdication—at least the kinds discussed in this Article—can also quiet political dissent. An Elysian perspective helps here. In Democracy and Distrust, John Hart Ely argued that courts should act to ensure that voters are able to “clear the channels of political change.” 233 John Hart Ely, Democracy and Distrust 105–34 (1980). Although Ely uses that phrase to describe regulating the political process, it has broad application. See, e.g., Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1015, 1064 & n.143 (2004) (noting “public law norms” can operate to disrupt government officials in an Elysian sense). Here, abdication ossifies, rather than clears, the channels of political change by muting the voices of those worst-served by the legal system. Consider those who suffer from the noncompliance that abdication shelters: prisoners in county jails subject to poor prison conditions; indigent criminal defendants who, because of poor representation, are likely soon to be in prison as well; and people who are not registered to vote or do not receive a ballot in time to cast their vote. These groups are prototypically disenfranchised. They are unlikely to publically dissent, or create dialogue that moves national policy forward, because they are unlikely to have the opportunity to dissent. As a consequence, they are unlikely to hold state or local governments accountable for noncompliance with federal law. 234 You might worry that this representational-harm analysis is overly dependent on the specific case studies in this Article. That is, that these case studies happen to involve groups that lack political strength (indigent defendants, nonvoters, etc.) and are thus particularly susceptible to silencing. Indeed, we might envision an abdicated federal law that improves the lives of the politically powerful who can organize to prevent local noncompliance. On the other hand, states may be more likely to abdicate federal laws that aid the politically powerless, in part because administering those laws themselves could be politically harmful at the state level.
Abdication thus creates a number of worrisome conditions. It causes states to believe they are not responsible for federal laws that impose state responsibilities, making statewide compliance difficult to achieve. It pushes compliance efforts down to the local level, which is often impractical or impossible. And it creates representational harms by diminishing political accountability and muting dissent.
A set of legal and political factors independent from the federal laws at issue explains why states make abdication arguments in the first place. That is, why delegating federal responsibilities leads states to believe that they have actually given away those responsibilities—or, put simply, how delegation becomes abdication.
Factors both intrinsic and extrinsic to the state–local relationship transform delegation into abdication. First, delegation of federal responsibilities occurs against a backdrop of preexisting legal and political relationships between states and their local governments. Delegations are superimposed upon those preexisting relationships and as a consequence, state officials believe they have less authority over local governments than a plaintiff or federal court might prefer.
Second, a set of factors outside the state–local relationship operates to cause confusion about who is responsible for these federal laws—states or counties. The federal laws at issue and the doctrine interpreting those laws create ambiguity about the entity ultimately responsible for compliance.
1. State–Local Factors. — Preexisting state–local relationships inform local control over federal responsibilities and in part explain why states make abdication arguments when presented with local noncompliance.
State–local relations are generally governed by some degree of “home rule”: the idea that local governments should be responsible for purely local affairs while states should be responsible for issues of statewide concern. 235 See Baker & Rodriguez, supra note 17, at 1338; see also Dale Krane et al., Home Rule in America: A Fifty-State Handbook 2 (2001) (“[T]he ideal of home rule is defined as the ability of a local government to act and make policy in all areas that have not been designated to be of statewide interest through general law, state constitutional provisions, or initiatives and referenda.”). The line between a purely local affair and statewide concerns is something that states, local governments, and the courts have struggled to define. Id. at 1 (“Where the line between an appropriate sphere of local action and the authority of state government is drawn has been a source of continuous conflict in state capitals.”). Individual states grant home rule to local governments either legislatively or constitutionally. 236 Joseph F. Zimmerman, State-Local Government Interactions 4 (2012). Most states provide some form of home rule, though each state has unique variations. 237 See Krane et al., supra note 235, at 476–77 (attempting to classify the home-rule contours of each state).
There is a kinship between abdication and home rule. Whereas home rule is a state decision to confer local autonomy on a set of state policy issues, abdication is a state decision to confer local autonomy on specifically federal policy issues. Home rule permeates a state’s administration of federal law.
Consider the case studies described above. California, for example, has made abdication arguments in the incarceration context, 238 See supra section I.A.2 (describing the state’s argument that it was not responsible for accommodating prisoners despite federal requirements). the indigent-defense context, 239 See supra note 118 (noting that California filed a demurrer on abdication grounds in response to a suit by indigent criminal defendants). the public-assistance context, 240 See supra note 63 (discussing a Ninth Circuit case in which the court considered whether California could be held responsible for San Francisco’s administration of the Food Stamp Act). and the election law context. 241 See Voting Rights Coal. v. Wilson, 60 F.3d 1411, 1412–13, 1416 (9th Cir. 1995) (affirming the district court’s ruling ordering California to comply with the NVRA). Unsurprisingly, local governments in California possess significant autonomy: They “enjoy[ ] considerable home rule. They have organizational flexibility, a wide latitude to spend and regulate, and the ability to experiment with programs and procedures.” 242 Krane et al., supra note 235, at 58. Although California local governments do not possess as much fiscal autonomy as they once did, 243 Id. at 63–66. the California constitution gives local governments broad political and policymaking authority. 244 Id. at 61–63, 67.
Home-rule laws are a helpful starting place for understanding state–local relationships, but other dynamics explain those relationships as well. 245 Baker & Rodriguez, supra note 17, at 1342 (“While constitutional home rule on paper points to a delineated realm of local sovereignty, the record of home rule in the state courts in this regard is more mixed.”). A state’s political culture of local autonomy can also help explain why states make abdication arguments. As one home-rule scholar has noted, “[E]ven though state courts typically hold the state–local relationship to be unitary and hierarchical, the political reality is that the relationship is more complicated.” 246 Krane et al., supra note 235, at 4; see also Baker & Rodriguez, supra note 17, at 1344–64 (describing the complex politics of home rule by examining how state courts resolve state–local conflicts across different regulatory areas). The particular history and patterns of the state–local relationship also bear upon the efficacy and reach of federal law.
New York, for example, has made abdication arguments in the public assistance, 247 See supra section I.A.1 (discussing two cases with different outcomes in which New York state argued that delegating to local government absolved the state of responsibility noncompliance). election law, 248 United States v. New York, 700 F. Supp. 2d 186, 203–06 (N.D.N.Y. 2010) (describing arguments by New York state agencies that they should not be liable for violations of the NVRA because local community colleges—and not state officials—administered the offices where the violations occurred); United States v. New York, 255 F. Supp. 2d 73, 78–81 (E.D.N.Y. 2003) (describing a similar state argument in the context of local disability services offices). and indigent defense contexts. 249 See supra notes 110–111 and accompanying text (noting New York’s abdication arguments in response to a suit by criminal defendants alleging New York’s indigent-defense scheme was unconstitutional). Formally, local governments in New York do not possess the same kind of autonomy that local governments in California do. The state takes an active role in regulating local government. 250 Krane et al., supra note 235, at 303, 310 (“The involvement of state government [in local activities] is extensive because the population is relatively liberal and predisposed to having an active state government that shapes local practices.”).
But the specific context in which New York’s abdication arguments arose reveals the connection between New York’s abdication and its state–local relations. In both public-assistance cases, plaintiffs sought to hold New York State responsible for the noncompliance of New York City, 251 See supra section I.A.1. which has had its own long-standing struggle with the State of New York for autonomy. 252 See Robert F. Pecorella, The Two New Yorks Revisited: The City and the State, in Governing New York State 7, 7–23 (Jeffrey M. Stonecash ed., 4th ed. 2001) (describing the conflicts between the State of New York and New York City over time and across legal and political domains). For more recent and popular evidence of the power struggles between the State of New York and New York City, see the current conflict over New York City’s homelessness problem, Tatiana Schlossberg, New York Today: Empire State of Conflict, N.Y. Times (Jan. 5, 2016), http://www.nytimes.com/2016/01/05/nyregion/new-york-today-empire-state-of-conflict.html (on file with the Columbia Law Review), and former-mayoral-candidate Anthony Weiner’s proposed “City Bill of Rights,” which reduced New York State’s power over New York City “on a range of issues that have long remained out of the hands of frustrated city lawmakers,” Sebastien Malo, Weiner’s Declaration of City Independence, N.Y. World (July 3, 2013), http://www.thenewyorkworld.com/2013/07/03/weiner/ [http://perma.cc/D87Q-2JFS]. And in fact, New York has previously stated in unrelated litigation (in which abdication was also at issue) that New York City made it difficult for the state to fully comply with federal law. In a suit against New York for violating HAVA, New York State wrote that New York City was “complicating” the state’s ability to maintain an accurate voter-registration list, as required by HAVA. 253 Status Report at 1, United States v. N.Y. State Bd. of Elections, No. CV 06 0263 (GLS) (N.D.N.Y. June 8, 2012) (on file with the Columbia Law Review) (stating “New York City was declining to do the required maintenance of its voter list . . . which had created a backlog of voters to be removed from the list” and suggesting the state was somewhat dependent on the city in order to fully comply with the federal law). So despite New York State’s strength in relation to its local governments, its more contentious relationship with New York City may explain New York State’s abdication arguments.
Strong home-rule provisions and other cultural factors may not always fully explain why a state might make an abdication argument, however. Consider Alabama, which made abdication arguments in the election law context. 254 See supra section I.A.4 (highlighting Alabama as an example of a state claiming its decentralized election systems free it of any obligation to follow federal election laws). Alabama stated that “[i]f a local official refuses to cooperate or provide information to the Secretary of State, the Secretary has no authority to compel the action of a local official.” 255 State Defendants’ Response to the United States’ Motion for Summary Judgment, Declaratory Judgment, and Permanent Injunctive Relief at 5, United States v. Alabama, 857 F. Supp. 2d 1236 (M.D. Ala. 2012) (No. 2:12-cv-00179) (on file with the Columbia Law Review). But the Alabama Constitution has one of the weakest home-rule provisions in the country. 256 Krane et al., supra note 235, at 23. Only three Alabama counties possess some form of home rule, and local government powers are specifically enumerated by the Alabama constitution, rather than granted broadly. 257 Id. at 26. The state legislature provides “zealous . . . oversight and control” over local governments. 258 Id. at 31–32.
So other, more general state–local dynamics must also exist to help explain abdication arguments. Richard Briffault, who has written extensively about the balance of power between states and local governments, provides a helpful principle. He has shown that once states delegate authority to local governments, they tend not to take it back:
Although local power is, at its source, a delegation from a state, that delegation is often quite broad and is rarely revoked. In most states, local governments operate in major policy areas without significant external legislative, administrative, or judicial supervision. Indeed, despite their formal status as political subdivisions of the state, most general purpose local governments—counties and municipalities—are primarily accountable to their local electorates. In practice, they function as representatives of local constituencies and not as field offices for state bureaucracies. 259 Briffault, “What About the ‘Ism’?,” supra note 2, at 1318.
In other words, states commonly abdicate state law responsibilities to their local governments. Briffault supports his claim with examples from education and land use, two predominantly state-law issues, 260 Briffault, Our Localism I, supra note 2, at 59–72. but generalizes his claim to state–local relations more broadly. 261 Id. at 17–18 (“[S]tate legislatures avoid [state–local] conflicts by devolving broad authority to localities and then declining to pass laws displacing the operations or policies of their local governments in critical areas of local decision making.”). He argues that “[l]ocalist ideology,” or a belief in local autonomy, “crippl[es] the willingness of states to take a statewide perspective and displace local authority when considerations of equity or efficiency make it appropriate to do so.” 262 Richard Briffault, Our Localism: Part II—Localism and Legal Theory, 90 Colum. L. Rev. 346, 452 (1990) [hereinafter Briffault, Our Localism II].
This particular state–local dynamic replicates itself in the context of state delegation of federal responsibilities as well. Take compliance with the NVRA, which requires states to provide voter-registration opportunities at certain state offices, including motor-vehicle offices and public-assistance offices. 263 52 U.S.C. § 20504 (Supp. 2015) (motor-vehicle offices); id. § 20506(2) (public-assistance offices and disability-services offices). Noncompliance with the NVRA is widespread, in part because states have delegated voter-registration responsibilities, public-assistance administration, and motor-vehicle administration to local governments, which fail to offer voter-registration opportunities at those offices. 264 See Weinstein-Tull, Election Law Federalism, supra note 11, at 759–60 (citing reports from the Elections Assistance Commission and the President’s Commission on Election Administration that demonstrate widespread noncompliance with the NVRA and arguing that state–local relationships have in part created that noncompliance).
A recent study found that in the absence of a clear legal chain of command between state officials and local offices responsible for administering a federal responsibility, state officials have few options for correcting local noncompliance. 265 Douglas R. Hess et al., Encouraging Local Compliance with Federal Civil Rights Laws: Field Experiments with the National Voter Registration Act, 76 Pub. Admin. Rev. 165, 172 (2015). The study considered whether minimally obtrusive state administrative oversight—like trainings for local officials and emails reminding them to comply with the NVRA—could increase NVRA compliance at the local level. 266 Id. at 168. These measures were some of the only actions available to the state officials, given the states’ “authority structure, intergovernmental dynamics, and lax federal enforcement surrounding the NVRA.” 267 Id. The measures were “modestly” effective, but only for local offices that were already largely compliant with the NVRA. 268 Id. at 172. The intervention failed to increase compliance in noncompliant local offices. 269 Id.
The study reached this result despite the fact that the state officials the study’s authors worked with “were responsible and dutiful public servants who earnestly wanted to improve compliance with the dictates of the NVRA.” 270 Id. And, as the study mentioned, more serious interventions—like alerting the U.S. Department of Justice to the local noncompliance or instituting more intrusive monitoring and oversight of local governments—were unavailable to the state officials hoping to improve local compliance because of state law and intrastate political culture. 271 Id. at 166.
Even when state legislatures do act to empower state officials or otherwise encourage local compliance, or when they threaten to act, they face resistance from local officials who do not want to relinquish their authority. Take Michigan and indigent defense as an example. Once the state was sued for violating the Sixth Amendment and contemplated legislative change that would create state-enforceable standards for the provision of indigent defense, local voices protested that centralizing authority for indigent defense at the state level would create unnecessary bureaucracy and decrease the quality of representation. One Michigan county counsel stated that centralizing indigent defense would create “‘bureaucratic bulge and bloat.’”
See Scott Aiken, Rethinking the System: Changes Sought in How Poor Are Represented in Court, Herald-Palladium (Feb. 14, 2010), http://www.heraldpalladium.com/localnews/rethinking-the-system/article_cabf8c0a-05e8-5456-a107-0dc6731478b4.html [http://perma.cc/X9QB-5SQU] (quoting R. McKinley Elliott, Berrien County corporate counsel).
The legislative director of the Michigan Association of Counties worried that the state would strip local governments of their authority over indigent-defense programs but continue to make local governments pay for them.
See David Egger, Securing Rights for the Poor: Push Continues to Fix Indigent Defense in State, Grand Rapids Press (May 5, 2013) (on file with the Columbia Law Review).
And a county judge opined that divesting local governments of authority would decrease the quality of representation by diminishing the involvement of the actors most familiar with each individual lawsuit.
See Angie Jackson, Locals Skeptical over Push to Overhaul Indigent Defense, Record-Eagle (June 22, 2013), http://www.record-eagle.com/news/local_news/locals-skeptical-over-push-to-overhaul-indigent-defense/article_37a4da76-823d-525f-a371-0147c11eca9b.html (on file with the Columbia Law Review) (quoting Thirteenth Circuit Court of Michigan Judge Thomas Power).
Briffault suggests that another reason power tends to remain at the local level, once delegated, is that local governments are understood as the extension of the family, in opposition to the state as government. That association reinforces local control over certain state responsibilities that have been delegated downward. See Briffault, Our Localism II, supra note 262, at 385 (“[C]onceptualiz[ing] local government after the model of suburbs as centers of families and homes facilitates the equation of local control with family control, encourages deference to state decisions and makes it more difficult for concerns about interlocal inequality and the external effects of local actions to overcome . . . decentralization.”). A similar dynamic has occurred in the elections context. 275 See Weinstein-Tull, Localist Critique of Shelby County, supra note 123 at 300 (describing resistance among local governments when states attempted to comply with HAVA by assuming greater control over some aspects of election administration previously left to local governments).
Economic conditions can also affect whether states abdicate. Money informs many of the conflicts between states and their local governments. A “law of intergovernmental relations,” one scholar notes, is that during times of economic stress, states both shift greater responsibilities to local governments and also provide less financial assistance. 276 David R. Berman, Local Government and the States: Autonomy, Politics, and Policy 153 (2003); see also id. at 112 (noting “state-local tensions vary with ups and downs in the general economy”); Steven D. Gold & Bruce A. Wallin, The State Fiscal Predicament Under the New Federalism, in The End of Welfare? Consequences of Federal Devolution for the Nation 55, 73 (Max B. Sawicky ed., Routledge 2015) (1999) (“[I]n recent years . . . states have pursued ‘de facto federalism’ and ‘fend-for-yourself federalism’ policies that often served to shift burdens to local governments without carefully considering whether this was the correct course.” (footnote omitted)). States may be less likely to oversee local administration of federal obligations when they are not responsible for funding and therefore more likely to create conditions of abdication during economic downturns.
Finally, it is worth noting that these state–local dynamics do not explain why states abdicate. This Article avoids chronicling state rationales for abdication, in part because understanding the motives of states in abdicating federal responsibilities is beyond its scope and because state intention should not affect state liability. 277 I later speculate as to state intention. See infra section III.C.1. Nevertheless, it is interesting to note that states of all political stripes make abdication arguments. Alabama and Louisiana have made abdication arguments, but California and New York have made abdication arguments more regularly and across a wider set of federal policy areas than any other state. 278 See supra section I.A. California and New York tend to align politically in favor of the federal civil rights laws they abdicate. But they are also large, complex states that demonstrate that state bureaucracy can create unintentional resistance to federal law—certainly in the form of abdication, and perhaps in other ways as well 279 See infra section III.C.3 for a discussion of other barriers potentially created by state bureaucracy. —even in states that might otherwise sympathize with those laws.
2. External Factors. — Factors outside the state–local relationship have created ambiguity that also may lead to state abdication arguments. Federal statutes themselves seldom account for the decentralized structure that states employ when administering federal law. And abdication and commandeering case law is sufficiently inconsistent so as to create doctrinal space for states to continue making abdication arguments.
First, federal laws that impose responsibilities onto states rarely address the reality that states delegate those responsibilities to local governments. The election statutes described above, for example, make no mention of local governments even though it is widely understood that states delegate broad election-administration responsibilities. The Sixth Amendment and federal case law on the right to counsel similarly fail to acknowledge the decentralized reality of state indigent-defense programs. In the incarceration context, the Eighth Amendment makes no mention of local government, even though local governments often administer state programs subject to the Eighth Amendment.
Some exceptions exist, especially in the context of public assistance. The Food Stamp Act accounts for states that decentralize their system of public-assistance administration by broadly defining “state agency” under the statute to include “the local offices thereof, which ha[ve] the responsibility for the administration of the federally aided public-assistance programs within such State.” 280 7 U.S.C. § 2012(s) (Supp. 2015) (emphasis added). Furthermore, “in those States where such assistance programs are operated on a decentralized basis, the term [state agency] shall include the counterpart local agencies administering such programs . . . .” Id. Medicaid requires states that delegate administrative responsibility to local governments to closely monitor that delegation. 281 See Shakhnes v. Berlin, 689 F.3d 244, 247–48 (2d Cir. 2012) (describing how Medicaid allocates responsibility between federal, state, and local governments). Medicaid regulations permit the state agency responsible for administering Medicaid to delegate eligibility determinations to local government agencies. See 42 C.F.R. §§ 431.10(c)–(d) (2015). However, should the state delegate, it must also create “methods to keep itself . . . informed of the adherence of local agencies to the State plan provisions” and “[t]ake corrective action to ensure their adherence.” Id. § 435.903. Although these provisions do not prevent states from making abdication arguments in the context of these statutes, 282 See, e.g., Robertson v. Jackson, 972 F.2d 529, 530 (4th Cir. 1992) (describing the state commissioner’s argument that Virginia’s decentralized system of public-assistance administration absolved him from responsibility for violations of the federal laws at the local level). they do provide federal authority that courts use to reject these arguments. 283 See id. (noting that the language of the Food Stamp Act applied to Virginia’s decentralized system of public-assistance administration).
Second, inconsistent case law has sent a message to states that they may not bear ultimate responsibility for compliance with federal law once they delegate those responsibilities downward. States use language from those cases to attempt to avoid liability when challenged. A recent election law case out of Mississippi provides an example. In True the Vote v. Hosemann, private plaintiffs sued state officials pursuant to the NVRA’s public-disclosure provision seeking voting records from the 2014 Senate election. 284 43 F. Supp. 3d 693, 700 (S.D. Miss. 2014). Mississippi Secretary of State Delbert Hosemann deployed the doctrinal ambiguity of the Missouri case—which held that states could not be required to enforce the NVRA against noncompliant local governments 285 See United States v. Missouri, 535 F.3d 844, 850–51 (8th Cir. 2008). —in his response. He argued that he was “not a proper party to plaintiffs’ putative causes of action asserted” 286 Secretary of State Delbert Hosemann’s Answer and Defenses to Plaintiffs’ Complaint at 14, True the Vote, 43 F. Supp. 3d 693 (No. 3:14-CV-532-NFA) (on file with the Columbia Law Review). —in part because he had no “authority or duty to enforce NVRA’s public disclosure provision, or any state laws, against Mississippi’s 82 locally elected Circuit Clerks”—and that neither the NVRA nor state law required him to “enforce the [NVRA] against local officials.” 287 Brief of Secretary of State Delbert Hosemann in Opposition to Motion for Partial Summary Judgment at 33–34, True the Vote, 43 F. Supp. 3d 693 (No. 3:14-CV-532-NFA) (citing Missouri, 535 F.3d at 849–51) (on file with the Columbia Law Review).
The anticommandeering doctrine has also contributed some ambiguity to abdication cases. Although the Supreme Court has never explicitly extended the anticommandeering doctrine to state abdication or delegation to local government, that doctrine has provided ammunition for states to argue that their delegation absolves them of responsibility for federal law.
Briefly, the anticommandeering principle states that the federal government may not “compel the States to implement, by legislation or executive action, federal regulatory programs.” 288 Printz v. United States, 521 U.S. 898, 925 (1997). In New York v. United States, the Court struck down a federal statute that forced states to take title to low-level radioactive waste unless the state was able to dispose of that waste—either itself or through an interstate compact—by a certain date. 289 505 U.S. 144, 153–54 (1992). The Court held that Congress could not compel a state “to enact or administer a federal regulatory program.” 290 Id. at 188. A few years later in Printz v. United States, the Court struck down a part of the Brady Act that required state and local law enforcement officers to conduct background checks on prospective handgun buyers. 291 Printz, 521 U.S. at 902. The Court held “that Congress cannot circumvent that prohibition by conscripting the State’s officers directly.” 292 Id.
States have argued that the anticommandeering doctrine prohibits the federal government from creating state responsibilities in areas in which states delegate to local governments. In the incarceration context, California has argued that requiring the state to monitor, supervise, and ensure that its local governments complied with the ADA and the Eighth Amendment violated the anticommandeering principle. 293 Defendants-Appellants’ Opening Brief at 14–16, Armstrong I, 622 F.3d 1058 (9th Cir. 2010) (No. 09-17144), 2009 WL 5538925 (arguing that “ordering Defendants to oversee county jail operations” violated the anticommandeering principle). Multiple states have also cited the anticommandeering doctrine in the elections context. 294 See ACORN v. Miller, 129 F.3d 833, 835–36 (6th Cir. 1997) (“Citing [the anticommandeering doctrine,] . . . Michigan claims that the Act is unconstitutional because it conscripts state agencies, personnel, and funds to further a federal purpose, thereby impinging upon basic principles of federalism and violating the Tenth Amendment.”(citation omitted)); Petition for Writ of Certiorari at 15–16, Wilson v. Voting Rights Coal., 516 U.S. 1093 (1996) (No. 95-673), 1995 WL 17048226 (challenging the constitutionality of the NVRA on the basis that Congress “conscripts state governments as its agents”); see also Amicus Curiae Brief of Pacific Legal Foundation and the States of Arizona, Idaho, New Hampshire, and South Carolina in Support of Petitioners at 17, Wilson, 516 U.S. 1093 (No. 95-673), 1995 WL 17048406 (“If the Constitution prohibits Congress from forcing state legislatures to legislate, it follows that Congress cannot step into the shoes of the state Legislature and commandeer state agencies simply to do their bidding.”).
Courts have largely rejected these arguments, 295 See ACORN, 129 F.3d at 836 (dismissing a state anticommandeering argument and finding that “Article 1 Section 4 explicitly grants Congress the authority” to make or alter laws regarding federal elections); Wilson v. United States, 878 F. Supp. 1324, 1327–28 (N.D. Cal. 1995) (“Article 1, Section 4 specifically states Congress may make or alter state regulations concerning the time, place and manner of federal elections.”). But see Voting Rights Coal. v. Wilson, 60 F.3d 1411, 1415–16 (9th Cir. 1995) (recognizing that California’s sovereignty was a “constitutional concern” and directing the district court “to impose no burdens on the state not authorized by the Act which would impair the State of California’s retained power to conduct its state elections as it sees fit”). but they nonetheless may reflect a belief on the part of states—created by inconsistent federal law—that abdicating their federal responsibilities protects them from liability despite local noncompliance. 296 Advocates themselves may create some of the ambiguity about ultimate responsibility for delegated federal responsibilities. Whereas some advocates sue states for violating delegated federal law, some sue local governments, which may send a message to states that they do not bear ultimate responsibility for compliance. Advocates may choose to sue local governments rather than states for perfectly sensible reasons: to avoid immunity defenses or to target the actor most directly responsible for the violation. Fred Smith has argued, however, that local governments may functionally enjoy sovereign immunity themselves (from constitutional suit, at least), suggesting local governments may not always be softer targets than states. See Fred Smith, Local Sovereign Immunity, 116 Colum. L. Rev. 409, 486–87 (2016) (“[C]ourts have cited judicial conceptions of sovereignty to protect local governments and their officials from transgressions of constitutional guarantees.”).
III. Abdication and Federalism
Abdication provides a new perspective on decentralizing federal policy. We decentralize because we believe that allowing states to tailor federal programs to the needs and tastes of their inhabitants improves the effectiveness of those laws. 297 See Jessica Bulman-Pozen, Executive Federalism Comes to America, 102 Va. L. Rev. 953, 994–1001 (2016) (describing the benefits of state-differentiated national policy that can result from negotiation and cooperation between federal and state executive branches in some cooperative federalism schemes); Gluck, [National] Federalism, supra note 1, at 2020 (“Values like experimentation, variation, and tailoring to local circumstances are also now integral components of nationalist policy making.”). Tailoring to local tastes has long been a value of federalism. Decentralized policy encourages local diversity, innovation, and interjurisdictional competition. 298 Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 610 (2007). A decentralized government, the theory goes, is “more sensitive to the diverse needs of a heterogenous [sic] society.” 299 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991); see also Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493–94 (1987) (“The first, and most axiomatic, advantage of decentralized government is that local laws can be adapted to local conditions and local tastes, while a national government must take a uniform—and hence less desirable—approach.”). Scholars have recently argued that even when states resist federal laws, they can serve nationalist ends. See Heather K. Gerken, Federalism and Nationalism: Time for A Détente?, 59 St. Louis U. L.J. 997, 1001–04 (2015) (describing how disagreement between the federal, state, and local governments can result in productive dialogue and disagreement).
While state implementation will vary, a bedrock set of federal policies attempts to provide uniformity, or a floor for a set of rights that we identify as universally important. 300 See, e.g., Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N.Y.U. L. Rev. 1692, 1705–06 (2001) (noting that federal courts develop federal common law to implement uniform application of federal law). But see Abbe R. Gluck, Nationalism as the New Federalism (and Federalism as the New Nationalism): A Complementary Account (and Some Challenges) to the Nationalist School, 59 St. Louis U. L.J. 1045, 1057–59 (2015) (noting that Congress now designs federal law to foster disuniformity). This Article argues that abdication creates major challenges to that uniformity and reveals a new kind of cost to decentralization. This cost is not borne from noncompliance created by errant local governments or intransigent states. Rather, it is a cost to compliance with federal law created by the legal and political ambiguity of the state–local relationship.
This Part discusses abdication within the framework of federalism. Section III.A uses abdication to contribute to and question some of the doctrinal and scholarly wisdom that sits at the intersection of federalism and localism. Section III.B outlines how courts and others could address abdication in a coherent, productive way. Section III.C poses questions for further study.
A. Abdication as Critique
Abdication provides a new lens through which to reassess previous thinking on decentralization and federalism. It demonstrates that we cannot fully understand the balance of power between states and the federal government without also understanding the distribution of power between states and their local governments. This section uses abdication to provide a new perspective on two ideas in the federalism scholarship: local constitutionalism and cooperative federalism. 301 In making this critique, I am reminded of Larry Kramer’s comment that “[t]alking about federalism feels a bit like joining the proverbial blind men trying to describe an elephant. It’s such a big topic, one can’t possibly hope to grasp more than a small part of the beast.” Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1485 (1994).
1. Local Constitutionalism. — Scholars have, in recent years, explored the place of local governments in our federal constitutional system. These scholars have demonstrated that local governments can productively contribute to national discourse and unity, minority rights, and policy consensus.
Abdication demonstrates that these accounts are incomplete, however: They fail to account for the complicated and varied relationships between states and their local governments, the ways in which federal law can get lost in those relationships, and the reluctance of federal courts to step in. Abdication shelters noncompliance with federal law at the local level, allowing states—intentionally or not—to incubate noncompliance without publically disagreeing with the law. This shelter diminishes consensus-building dialogue about that federal law. In so doing, abdication presents a pure downside to local decentralization of federal policy that localism scholars overlook.
David Barron, in his work on local constitutionalism, has promoted federal court deference to local conduct that vindicates positive constitutional protections. 302 David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487, 491 (1999) [hereinafter Barron, Promise of Cooley’s City]. Because local governments “are most directly responsible for structuring political struggles over the most contentious of public questions, . . . . [they] are often uniquely well positioned to give content to the substantive constitutional principles that should inform the consideration of such public questions.” 303 Id. at 491. As a practical matter, Barron advocates that recognizing the value of local constitutionalism means “affording local communities the freedom to give life to the positive constitutional rights of their residents that judges are often ill-positioned—and unwilling—to secure.” 304 Id. at 548; see also id. at 600 (“Local constitutionalism would not . . . support a constitutional defense of localism qua localism. It would suggest only that local governmental sovereignty, understood as local freedom from state law constraints, merits federal constitutional protection when such recognition would serve some independent substantive constitutional value.”).
Heather Gerken has also breathed new constitutional life into local governments with her formulation of “federalism-all-the-way-down.” 305 Gerken, Federalism All the Way Down, supra note 19, at 8. To Gerken, state and local governments are spaces where political and racial minorities can rule in the majority, generating “a dynamic form of contestation [and] the democratic churn necessary for an ossified national system to move forward.” 306 Id. at 10; see also Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745, 1748 (2005) [hereinafter Gerken, Dissenting by Deciding]. Gerken and Jessica Bulman-Pozen have coined the term “uncooperative federalism,” which describes how disagreement among federal, state, and local governments can result in productive dialogue and disagreement. 307 Bulman-Pozen & Gerken, supra note 17, at 1284–95.
These theories—that celebrate the value of local constitutionalism and dissent in the context of national policy 308 I do not suggest that Barron and Gerken are engaged in the same project. They are not. They do, however, both possess a robust view of individual and structural rights and see in local government the potential for positive expression of those rights. —have extended federalism scholarship to include both the vast world of local administration of federal law and the ways that federal law actually affects humans at the local level.
But they rest on two premises that abdication casts doubt on. First, those who celebrate local constitutionalism rely on the idea that the federal government and federal courts can correct local noncompliance. So to Barron, “a doctrine of local constitutionalism should not be confused with a defense of a locality’s right to engage in either constitutional nullification or unlimited constitutional expansionism.” 309 Barron, Promise of Cooley’s City, supra note 302, at 602–03; see also id. at 600 (“Nor would local constitutionalism afford local governments the right to disregard state law commands in the absence of some demonstration that such disregard would be supported by an independent federal constitutional limitation on state power. There is no general federal constitutional principle of localism that circumscribes traditional state power.”). Barron is bullish on state control of local governments: “[T]he fact that cities are securely in the grip of state control helps counterbalance the common assumption that city officials’ independent interpretations pose a greater threat than the interpretations of state officials.” 310 David J. Barron, Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218, 2234–35 (2006) [hereinafter Barron, Why (and When)]. Gerken similarly notes that “it is perfectly acceptable for the national majority to play the Supremacy Clause card whenever it sees fit.” 311 Gerken, Federalism All the Way Down, supra note 19, at 51; see id. at 65 (noting a strong national majority can reverse local majorities when it chooses, mitigating costs associated with local majorities that oppress racial minorities “in defiance of a national majority”). Gerken’s account of the Supremacy Clause trump card is nuanced, however. She points out that “the Supremacy Clause won’t always be a trump card; sometimes it will simply be the [national majority’s] opening play.” Id. at 71.
The current absence of a coherent nonabdication doctrine—and the difficulties abdication poses to courts—is a reminder that as of now, the “Supremacy Clause card” of federal law is more jack than ace. Courts have not settled on a doctrine clarifying that federal law will always overcome internal state structural barriers to compliance with that law. And even when courts do ultimately decide that federal law overcomes those barriers, lawsuits create significant delays and litigation costs. 312 See supra section I.A (describing four cases in which lawsuits arose from state abdication of federal responsibilities).
Abdication therefore raises an additional and pervasive cost to policy decentralization and a critique of a theory of federalism that celebrates local constitutionalism. A familiar cost of taking localism seriously is contending with oppressive or racist local communities. But abdication demonstrates that another cost comes not from those communities that flout federal law but from overcoming structural arrangements that states deploy. When a state abdicates, a local government can more freely flout federal law even when it is not governed by oppressive or racist communities.
Second, a theory of federalism that values decentralization to the local level relies on local governments to be expressive in their understanding of federal policy and the Constitution. That is, local constitutionalism and contestation contribute to national deossification and democratic churn only when people know about it. Barron discusses “comfort with the notion that democracy depends upon reasonable disagreement” that can be hashed out among the federal, state, and local levels. 313 Barron, A Localist Critique, supra note 17, at 377; see also Barron, Why (and When), supra note 310, at 2220 (“A growing body of scholarship now emphasizes the important and constructive role that cities could play in resolving contemporary constitutional disputes.”). San Francisco’s experiment with marriage equality in 2004 is a paradigmatic example: San Francisco formulated a localist understanding of the Constitution and communicated that understanding by issuing same-sex marriage licenses. 314 See Gerken, Dissenting by Deciding, supra note 306, at 1765. A local constitutionalist might celebrate that kind of local dissent because it affected the national political landscape. 315 Id.
Abdication complicates the idea that local governments can be fora for productive dialogue around constitutional meaning. Local governments administer the Constitution on orders from the state, but they often do that work in obscurity. Few pay attention to how rural counties interpret the Sixth Amendment or how small county jails interpret the Eighth Amendment.
Instead, abdication allows a quiet unconstitutionalism at the local level. By creating slack and weakening relationships between the public and its governing representatives, as described in section II.A.2, abdication allows states to hide unconstitutional conduct from view. In this way, abdication reveals a set of important policy areas in which decentralization is a pure downside: Not only does it foster noncompliance, it does so in a way that allows states and local governments to disagree noiselessly, without contributing to productive national dialogue about those policies.
Scrutinizing local constitutionalism, and local administration of federal law generally, is not inconsistent with a sincere belief in the positive potential of local governments. Local governments are capable of great public good at the constitutional level. 316 See, e.g., Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 Harv. C.R.-C.L. L. Rev. 1, 18–26 (2012). But abdication emphasizes the importance of the distinction between expressive and nonexpressive local action. Whereas we may choose to celebrate and encourage the former, we should carefully scrutinize the latter.
2. Cooperative Federalism. — Abdication also provides a critique of the theory and doctrine that support cooperative federalism. Cooperative federalism schemes seek to harness states to administer federal programs and tailor them to specific local needs. The doctrines of cooperative federalism, like the anticommandeering principle, protect state sovereignty and, in so doing, also protect state prerogative to abdicate. Abdication therefore permits states to use the veneer of federalism to obscure their failure to comply with federal law.
It used to be that we understood federalism as a vertical division of powers between the federal government and the states. Courts called the arrangement “dual federalism”: The federal government operated within its policy domains, the states within theirs. 317 See Weiser, Constitutional Architecture, supra note 169, at 665. During the New Deal, Congress enacted a set of federal laws that required state participation. The federal government became involved in areas of traditional state concern, like public assistance. 318 Id. at 669–70. Scholars and courts call this kind of interaction “cooperative federalism.” 319 Id. Congress has continued to innovate in the ways that it uses federal–state cooperation to further federal ends. 320 See Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 584–94 (2011) (noting the Affordable Care Act contains at least five different kinds of federal–state cooperation).
Scholars have coined a variety of terms to describe the give-and-take between federal and state governments implicated by these laws. Robert Schapiro uses the term “interactive federalism” to describe how the federal government and states work together to achieve a wide variety of policy goals. 321 Robert A. Schapiro, From Dualist Federalism to Interactive Federalism, 56 Emory L.J. 1, 8 (2006); see also Robert A. Schapiro, Toward A Theory of Interactive Federalism, 91 Iowa L. Rev. 243, 244 (2005) (“[P]olyphonic federalism rejects the dualist vestiges of dual federalism . . . [and] focuses on facilitating . . . the interaction of state and federal governments.”). Others have used the terms “picket fence federalism” 322 Roderick M. Hills, Jr., The Eleventh Amendment as Curb on Bureaucratic Power, 53 Stan. L. Rev. 1225, 1227 (2001) (“The idea behind the metaphor is that state and federal agency experts within the same specialty—the ‘posts’ in the ‘fence’—often share more in common with each other than they do with the level of government by which they are employed.”). and “marble cake federalism.” 323 See Morton Grodzins, The American System: A New View of Government in the United States 8 (1966) (“No important activity of government in the United States is the exclusive province of one of the levels, not even what may be regarded as the most national of national functions, such as foreign relations; not even the most local of local functions, such as police protection . . . .”). Still others have coined federalism language to describe policy-specific relationships, like immigration federalism, 324 Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57. national security federalism, 325 Matthew C. Waxman, National Security Federalism in the Age of Terror, 64 Stan. L. Rev. 289 (2012). election law federalism, 326 Weinstein-Tull, Election Law Federalism, supra note 11. and so on.
Whatever you choose to call it, federal law now “reaches for the states” in a wide range of statutory contexts. 327 Gluck, [National] Federalism, supra note 1, at 1999 (noting Congress relies on states “to restrain the breadth of federal law and to bring the states’ expertise, variety, traditional authority, and sovereign lawmaking apparatus into federal statutes”). States act in their sovereign capacities to administer federal law by “pass[ing] new state laws and regulations, creat[ing] new state institutions, appoint[ing] state officials, disburs[ing] state funds, and hear[ing] cases in state courts.” 328 Id. at 2000.
Abdication demonstrates that even as states use state law to tailor federal law to local needs, they can also erect barriers to frustrate federal law. 329 See supra sections I.A.1–.4. As the case studies in Part I demonstrate, a state may seek to tailor federal law to even more local needs by abdicating its federal responsibilities to local governments. That abdication then creates state-level barriers to compliance with the federal law being abdicated.
State-protective federalism doctrines like the anticommandeering principle then buttress and protect those state-level barriers. Although not all of the state filings in abdication cases explicitly sound in federalism, some do, and many others do implicitly. State filings refer to the anticommandeering doctrine and a state’s power to order its internal structures. 330 See supra section II.B.2 for examples of state briefing. For case law that sets out this doctrine, see Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (holding the Telecom Act could not preempt Missouri law because “liberating preemption would come only by interposing federal authority between a State and its municipal subdivisions, [which are] . . . ‘created as convenient agencies for exercising . . . governmental powers of the State as may be entrusted to them in its absolute discretion’” (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991))); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Through the structure of its government . . . a State defines itself as a sovereign.”). Appeals to state laws that exempt state officials from responsibility for local noncompliance—a common state approach in abdication arguments—implicitly invoke the concept of state sovereignty by suggesting that federal law cannot force a state to organize counter to its internal preferences, even if those preferences frustrate federal law.
Abdication similarly highlights the ways in which recent federalism doctrine runs up against bedrock principles of federal supremacy. In a classic Supremacy Clause case, Testa v. Katt, the Supreme Court considered whether a Rhode Island court was obligated to entertain a federal claim that conflicted with a state law. 331 330 U.S. 386, 387–89 (1947). The Court held not only that the Rhode Island court must vindicate the federal right but also that no real conflict existed because the Supremacy Clause ensured that the federal law was, in fact, “the prevailing policy in every state.” 332 Id. at 393. The federal policy was “as much the policy of [the state] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the state.” 333 Id. at 392 (quoting Mondou v. New York, New Haven & Hartford R.R. , 223 U.S. 1, 57 (1912)).
Others have noted conflict between cooperative federalism programs and recent federalism doctrine as well. Bridget Fahey has written about the uncomfortable fit between the anticommandeering doctrine and the ways that cooperative federalism programs require states’ consent to participate. 334 See generally Bridget A. Fahey, Consent Procedures and American Federalism, 128 Harv. L. Rev. 1561 (2015). Nestor Davidson has written about the uncomfortable fit between federal laws that empower local governments and federalism doctrines that promote state law power to order their own internal structures. 335 Davidson, supra note 17, at 961 (“A clash is thus looming between plenary authority over local government as a facet of resurgent state sovereignty and the protection that has been afforded to federal-local cooperation.”).
State abdication arguments amount to state structural explanations for failing to reconcile state and federal laws. But those explanations clash with historical understandings of state and federal law. The more we learn about state structural barriers to compliance with federal laws that require state involvement, the clearer it becomes that these federalism doctrines either need to be reconceived or cannot possess broadly applicable force. It is the combination of cooperative federalism programs with state-protective federalism doctrines that makes state structural barriers particularly dangerous. 336 The problem of abdication is broader than cooperative federalism programs. As is obvious from Part I, the potential for abdication exists whenever federal law creates legal obligations on states, which consists of a superset of cooperative federalism programs. If the Supremacy Clause is to mean anything, federal law must be able to deeply disrupt state structures when necessary. This is true when states have consented to administering federal law, as they do when they receive federal dollars authorized by Commerce Clause legislation. But it must also be true when federal law (either statutory or constitutional) requires states to act even without the promise of funding.
B. A Coherent Approach to Abdication
Having identified barriers to compliance with federal law that abdication creates, and an incoherent set of opinions grappling with it, 337 See supra section I.C. this section presents some solutions. Section III.B.1 tackles back-end barriers to compliance with federal law—inconsistent judicial opinions on abdication once a lawsuit has been filed—and describes what a coherent nonabdication doctrine might look like, as well as how it would fit within existing federal law on state–local relationships. Section III.B.2 tackles front-end barriers to compliance with federal law created by abdication—the state belief that abdication disempowers state officials to comply with federal law before a lawsuit is filed—and suggests ways for legislators and courts to dispel that belief. Broadly, this section suggests that two legal concepts—(1) the idea that local governments are arms of the state and (2) federal supremacy, neither of which courts currently address—provide a coherent and reasonable way to resolve abdication cases. Section III.B.3 describes how we might remedy noncompliance caused by abdication. And Section III.B.4 discusses how the federal government could take a more active role to encourage compliance with federal law in policy areas prone to abdication.
1. State Liability. — Richard Ford has observed that “[l]ocal government exists in a netherworld of shifting and indeterminate legal status.”
Ford, supra note 20, at 1864.
It is therefore unsurprising that opinions addressing abdication treat local governments in different ways. Some consider local governments primarily as contractees with the state.
In the Armstrong prison litigation, for example, the Ninth Circuit treated the counties as parties that had contracted with the state to provide a service housing prisoners. Armstrong I, 622 F.3d 1058, 1069 (9th Cir. 2010) (holding that California’s choice to house incarcerated persons in county jails triggered its obligation to its prisoners and parolees).
Similarly, in the Henrietta D. public-assistance litigation, the Second Circuit ultimately held that New York could not evade responsibility for the Food Stamp Act merely because it had contracted those responsibilities away to New York City. Henrietta D. v. Bloomberg, 331 F.3d 261, 284–87 (2d Cir. 2003). Others have found states responsible for local noncompliance because of state laws that made states responsible specifically in the context of the delegated federal law. 340 See Robertson v. Jackson, 972 F.2d 529, 532 (4th Cir. 1992) (noting Virginia’s state law control over its local governments); Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69, 71 (9th Cir. 1981) (describing the Idaho state laws that empower the state to supervise local school districts). Still others found state liability not because of any special relationship between states and local governments, but for policy reasons: Allowing a state to elude federal responsibilities by sending them downward would “completely insulate” the “fifty states . . . from any enforcement burdens,” even in the face of noncompliance with federal law. 341 See Harkless v. Brunner, 545 F.3d 445, 452 (6th Cir. 2008).
But these holdings are peculiar for a different reason: None of them finds states responsible for local noncompliance on the ground that the formal status of local governments—from the perspective of federal law—is that of a part of the state itself. The prevailing legal authority on this point, set out by Hunter v. City of Pittsburgh, is that local governments are “political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.” 342 207 U.S. 161, 178 (1907); see also Briffault, Our Localism I, supra note 2, at 7 (“The formal legal status of a local government in relation to its state is summarized by the three concepts of ‘creature,’ ‘delegate’ and ‘agent.’”). In Hunter, the Court considered whether Pennsylvania’s decision to consolidate two cities, despite opposition by one of the cities, violated the federal constitutional rights of the unwilling city and its inhabitants. 343 Hunter, 207 U.S. at 174–76. The Court held that “[t]he number, nature and duration of the powers conferred upon [cities] . . . rests in the absolute discretion of the State.” 344 Id. at 178. The state “may modify or withdraw all such powers . . . conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme . . . .” 345 Id. at 178–79.
In recent years, scholars have debated whether Hunter remains good law, 346 See Morris, supra note 316, at 18–26 (arguing Hunter may have been overruled by Erie v. Tompkins). whether it describes sound policy, 347 See Barron, Promise of Cooley’s City, supra note 302, at 496, 595–611 (providing “some general principles concerning when, and to what extent, federal constitutional recognition should be accorded to local governmental institutions”). and whether it accurately characterizes the powers and flexibility that local governments wield in practice. 348 See Ford, supra note 20, at 1864 (“Local government exists in a netherworld of shifting and indeterminate legal status.”); id. at 1865 (“Hunter’s logic has not driven the constitutional analysis in the Court’s desegregation decisions.”). Commentators have noted the emergence of an alternate doctrine recognizing that local governments are more than administrative arms of the state: 349 A “shadow doctrine.” See Richard C. Schragger, Reclaiming the Canvassing Board: Bush v. Gore and the Political Currency of Local Government, 50 Buff. L. Rev. 393, 395–96 (2002) (“The result [of local governments’ ambiguous status] has been a constitutional ‘doctrine’ that treats localities as mere creatures of the state with no independent federal constitutional role, and an alternative ‘shadow doctrine’ that treats localities as sovereign political entities entitled to constitutional protection.”); see also Briffault, Our Localism I, supra note 2, at 85–86 (noting that the Court has recognized “the importance of localism in . . . political culture,” “[w]ithout according local governments . . . constitutional rights against the states”); Davidson, supra note 17, at 991–94 (describing different doctrinal areas—including Eleventh Amendment immunity, section 1983, antitrust law, and election law—in which the Supreme Court has disaggregated state from local governments); Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 Wis. L. Rev. 83, 85 (1986) (“This Article’s basic thesis concerning the constitutional vulnerability of cities begins from the fact that cities—unlike the states or federal government—have no set place in the American constitutional structure.”). For a detailed account that traces the movement for local autonomy throughout American history, see Barron, Reclaiming Home Rule, supra note 20, at 2277–322. Other local government scholars have persuasively challenged the characterization of local governments as either autonomous or controlled. See, e.g., Ford, supra note 20, at 1886 (“Localities are neither sovereigns nor delegates, neither freely chosen nor wholly imposed; rather they are altogether distinct political agents, and as such require a distinct theory of law and justice.”). They are, at times, “little republics which can serve as fora for citizen deliberation and participation in public decisionmaking over a broad range of issues of community concern.” 350 Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. Chi. L. Rev. 339, 419 (1993) (footnote omitted) (internal quotation marks omitted) (attributing the phrase “little republics” to Thomas Jefferson); see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 577 (1985) (Powell, J., dissenting) (“It is at these state and local levels—not in Washington as the Court so mistakenly thinks—that ‘democratic self-government’ is best exemplified.”). In these cases, courts treat local governments as representative bodies that deserve their own autonomy and are accountable for their own actions. 351 See, e.g., Milliken v. Bradley, 418 U.S. 717, 752–53 (1974) (holding that the value of local control over school district lines outweighed the federal district court’s interest in crafting an interdistrict remedy to a constitutional violation); see also Michelle Wilde Anderson, Mapped Out of Local Democracy, 62 Stan. L. Rev. 931, 964–78 (2010) (describing twentieth-century Supreme Court cases that promote local autonomy).
Courts, when deciding abdication cases, embrace an account of local government as autonomous, distinct from their states, and capable of independently contracting to fully inherit the states’ federal responsibilities. Armstrong and Henrietta D. even suggest that the local government contractees might as well be private entities—the obligations arose from the contracts, not from the relationship between the states and their local governments. 352 See supra note 339 and accompanying text.
And yet the abdication context seems especially poorly suited to privileging the autonomy of local governments. Here, in the context of federal law, we want the opposite: uniformity. This is true partly because abdication seems often to occur in the context of federal civil rights laws, which already aim to constrain state action in favor of federal civil rights minima. It is also true because abdication allows states to hide the noncompliant conduct of their local governments, providing a shield for states to avoid their federal responsibilities. 353 See supra section II.A.1.
Treating local governments as something other than “arms of the state,” for the purposes of federal law, forces courts to search for independent state liability within the maze of state law. 354 See supra notes 333–335 and accompanying text. For a helpful exploration of the question of state liability for local government actions, see generally Note, The State’s Vicarious Liability for the Actions of the City, 124 Harv. L. Rev. 1036 (2011). This student note proposes a rule under which “the state [is] vicariously liable only for city actions that the state has mandated that the city perform.” Id. at 1054. But relying on state law hierarchies of authority to determine state liability is unreliable: State law does not always accurately mark abdication. 355 Krane et al., supra note 235, at 4 (“[E]ven though state courts typically hold the state-local relationship to be unitary and hierarchical, the political reality is that the relationship is more complicated.”). States have different cultures of local autonomy that do not always track the approach set out in the state law. 356 See Barron, A Localist Critique, supra note 17, at 393 (“Local autonomy—or, at least, something widely perceived to be local autonomy—is alive and well under state law despite an overwhelming state constitutional premise that localism is to be the exception rather than rule.”); supra section II.B.1 (discussing extralegal factors that shape state–local relations).
Furthermore, using state law to determine state liability incentivizes states to statutorily abdicate their federal responsibilities. For example, we might consider adopting a liability standard similar to the local government sovereign immunity jurisprudence. That doctrine considers when a local government may enjoy its state’s Eleventh Amendment sovereign immunity from suit. The doctrine probes state law to determine whether the local government acted as part of the state when it committed the action that spawned the suit, or whether it was acting as an independent entity. 357 See Davidson, supra note 17, at 992 (citing cases). Similarly in the antitrust context, states confer to municipalities their sovereign immunity to Sherman Act claims when municipalities act “pursuant to a clearly expressed state policy” to restrain competition. See Town of Hallie v. City of Eau Claire, 471 U.S. 34, 40 (1985). Importing that standard to the abdication context would be risky, however. If states believe they can avoid their own federal obligations by fully abdicating those obligations to their local governments, they will do so and create the barriers to compliance described in Part II.
Instead, federal courts should pay closer attention to the actual federal law at issue. When the federal law clearly places responsibility for compliance on the state, courts should give states that responsibility. This rule applies whether the federal law requires states to create a new program (as in the case of public assistance) or creates new federal standards for existing state programs (like the federal election laws). Federal public-assistance laws explicitly place compliance responsibilities onto states, 358 See Woods v. United States, 724 F.2d 1444, 1447 (9th Cir. 1984) (“The Food Stamp Act places responsibility for the administration of the food stamp program on the state. It is the state that must request participation of the program . . . [and] agree with the Secretary [of Agriculture] on a plan for the lawful and effective operation of the program.” (citation omitted)). as do the federal election laws, 359 See National Voter Registration Act of 1993, 52 U.S.C. §§ 20504, 20506(a)(2), 20507 (Supp. 2015); Uniformed and Overseas Citizens Absentee Voting Act, id. §§ 20302(a), (f); Help America Vote Act, id. § 21081(a)(1)(A). Gideon and its progeny, 360 See Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963) (holding that states must provide counsel for indigent criminal defendants who cannot afford their own counsel); Tucker v. State, No. CV-OC-2015-10240, slip op. at 5 (Idaho Dist. Ct. Jan. 20, 2016) (on file with the Columbia Law Review) (“Unquestionably, the State is ultimately responsible for ensuring constitutionally-sound public defense.”); Duncan v. State, 774 N.W.2d 89, 104–05 (Mich. Ct. App. 2009) (“[I]t is the state that is ultimately mandated to ensure that indigent defendants are provided their constitutional right to counsel.”). and language accommodation in education laws. 361 20 U.S.C. § 1703(f) (2012) (“No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”); see Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69, 71 (9th Cir. 1981) (noting these federal laws placed liability directly onto states). With clear markers like these, courts may still, but need not, look for other reasons—like contract and state law—to justify state liability.
When the federal law clearly imposes requirements on local governments, and the local obligation comes directly from that federal law, states should not be responsible for local noncompliance. Examples of this include federal grant money that flows directly to local governments and federal laws that specifically target and implicate local governments. 362 For a set of federal laws and programs that implicate local governments directly in policy areas like immigration, national security, housing, community development, telecommunications, and education, see Davidson, supra note 17, at 971–75.
The harder case is when the target of the federal law is unclear. The Eighth Amendment is an example: It does not differentiate between state prisons and local jails. 363 See supra section II.B.2. In those cases, a court evaluating a state abdication argument should consider the context in which the local actor was operating. If the local actor responsible for noncompliance was acting as an agent while administering a state program, a court should find state liability. The Armstrong case is a clear example: Because California law sent state prisoners to local jails, the local officials were acting to administer the state’s criminal justice system. 364 See supra section I.A.2 (describing California’s state–local delegation of responsibility over prisoners and the Armstrong litigation). And, in fact, now that realignment has transferred jurisdiction over many kinds of state prisoners to local jails, state relief may be available for a wide range of local noncompliance with federal laws previously litigated against only local officials. This theory has yet to be tested in court.
But consider a local sheriff in a state other than California who arrests a disabled woman for intoxication and incarcerates her overnight (without charging her with a state crime) in a locally funded jail that fails to accommodate her disability. In that case, neither the local official nor the jail operates as part of the state criminal justice system, and the state should not be liable.
This approach may result in state liability for local conduct that state officials feel they have little control over. But making states responsible for a broader swath of federal law hardly seems a major problem. At worst, it will increase the number of bodies responsible for compliance with federal law and permit easier enforcement of that law.
2. State Structure. — A coherent nonabdication doctrine clarifying state liability postcomplaint will motivate states to pay closer attention to local noncompliance. But state beliefs about their responsibilities and powers under federal and state law create prelitigation, front-end barriers to compliance with federal law as well. To fully address these barriers, federal law must more explicitly empower state officials to comply with federal law, even when state law constrains state officials.
In the case studies in Part I.A, state officials argued that the federal laws at issue could not overcome a state chain of command that disempowered them from remedying noncompliance. 365 See supra section I.A. Missouri, sued for violations of the NVRA at the local level, stated that it was “unaware of a rule of statutory construction providing that [federal] statutes be construed to insure that agencies have sufficient resources to perform all the actions a statute would authorize.” 366 Appellees’ Brief at 40–41, United States v. Missouri, 535 F.3d 844 (8th Cir. 2008) (No. 07-2322), 2007 WL 6603869. Missouri cited the lack of federal money to enforce the NVRA as evidence that Congress did not intend states to play an enforcement role. 367 Id. In a public-assistance lawsuit against the Commissioner of the Virginia Department of Social Services for local noncompliance, the Commissioner argued that he was not empowered, as a matter of Virginia law, to remedy local noncompliance. 368 Brief for Appellant at 9, Robertson v. Jackson, 972 F.2d 529 (4th Cir. 1992) (No. 91-2580) (on file with the Columbia Law Review). Specifically, the Commissioner argued that he lacked state authority to discipline or remove local public-assistance providers or to vary their pay 369 Id. and that “[a]t the state level, clearly the Commissioner alone is not empowered to control and compel compliance with federal program requirements.” 370 Id. at 16. “Plaintiffs and the Court must take the Commissioner as they find him.” 371 Id. The Commissioner argued that “[a] public officer is a creature of legislation and the legislature alone determines the duties and authorities of the post.” 372 Id.
Arguments like these resonate with what Hills describes as the “widespread assumption among courts, politicians, and political scientists that the federal government must take nonfederal governmental institutions as it finds them, accepting the limits that state law imposes on such institutions.” 373 Hills, Dissecting the State, supra note 17, at 1207. Hills cites opinions from various state supreme courts promoting this view, including the Washington Supreme Court, which stated that a federal power “endow[ing] a state-created municipality with powers greater than those given it by its creator, the state legislature” would be “a momentous and novel theory of constitutional government . . . that will eventually relegate a sovereign state to a position of impotence never contemplated by the framers of our constitutions, state and Federal.” Id. at 1207–08 (quoting City of Tacoma v. Taxpayers of Tacoma, 307 P.2d 567, 577 (Wash. 1957)). State law limits state officials in different ways. State officials may not believe they have the authority to force their local governments to comply with federal law. Or a state official may want to improve local compliance, perhaps by providing additional funding to local governments, but depend on the legislature to authorize that funding. 374 After Idaho was sued for violating the Sixth Amendment right to counsel, the Idaho governor appealed to the Idaho legislature in his State of the State for more money to fund indigent defense programs in Idaho’s counties. KBOI News Staff, supra note 208. Structural approaches to abdication must address these constraints.
As a preliminary matter, very little doctrine governs whether federal law can relax constraints imposed by state law. As Abbe Gluck has observed—in the slightly different context of state agencies that lack state law authority to comply with federal law—it is an open question whether Congress can empower state actors with authority they otherwise lack under state law. 375 Gluck, [National] Federalism, supra note 1, at 2037–38; see also Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 260–61 (2011) (holding a state agency may sue state actors in federal court to enforce compliance with federal statutes, but declining to address the extent of Congress’s power to “affect the internal operations of a State”). Erin Ryan has called regulatory fields that implicate both federal and state laws an “interjurisdictional gray area.” 376 Ryan, supra note 298, at 567–84. Despite a lack of doctrine, a handful of scholars have examined this question and analyzed whether and how federal law can open the “black box” of a state and empower state or local officials to comply with federal law or otherwise cooperate with the federal government. No one has yet considered the question in the context of abdication, but this related analysis is helpful nonetheless.
Hills, in his seminal piece on “dissecting the state,” considered whether federal law can liberate state and local officials from the constraints of state law. 377 Hills, Dissecting the State, supra note 17, at 1201. Hills resists the assumption that federal law, generally in the context of federal grants, takes states as they are and instead suggests a rule by which courts presume state and local actors are empowered to spend federal dollars unless the state legislature explicitly prevents it. 378 Id. at 1232–52.
Philip Weiser has proposed a different approach, forged from the context of state laws that fail to adequately enable state actors to comply with federal laws. 379 Weiser himself focuses on the Telecommunications Act. See Weiser, Constitutional Architecture, supra note 169, at 677–81 (explaining why theories of state empowerment based on contract, preemption, and Hills’s presumption proposal fail to sufficiently authorize state agencies to comply with the Telecommunications Act). He suggests that courts adopt a standard analogous to the reverse-Erie doctrine 380 The reverse-Erie doctrine holds that “the Supremacy Clause empowers, and indeed requires, state courts to exercise jurisdiction in federal causes of action.” Id. at 682. Further, “where state courts lack authority to enforce an important aspect of a federal right—say, providing a jury trial or certain equitable remedies—reverse-Erie principles require that the state court rely on federal authority to supplement its ordinary practice.” Id. at 684; see also Kevin M. Clermont, Reverse-Erie, 82 Notre Dame L. Rev. 1, 4 (2006) (describing the reverse-Erie doctrine and the choice between state and federal law). and construe state law to empower state agencies to comply with federal law (even if the text of that state law does not do so explicitly) unless the state has a “valid excuse” for structuring itself differently. 381 Weiser, Constitutional Architecture, supra note 169, at 681–93 (proposing courts and state agencies “should conclude that implementing federal law is compatible with a state agency’s charter, provided that the state agency does not have to fundamentally change its form and . . . enactment after passage of the federal scheme could preclude [it] . . . from taking the heretofore unauthorized action”). Weiser’s more muscular proposal is premised in part on the idea that cooperative federalism laws allow—in the language of Albert O. Hirschman—“exit”: 382 Id. at 704–07. States can withdraw from traditional cooperative federalism programs like cash assistance and Medicaid if they are willing to pass up the federal dollars that flow through those programs. 383 Jim Rossi sees a similar problem—that is, state constitutions that constrain state and local agencies’ ability to enforce federal law—but suggests a more state-centered approach. See Jim Rossi, Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards, 46 Wm. & Mary L. Rev. 1343, 1370–83 (2005). Rossi suggests that state law and state courts, rather than federal courts employing the Supremacy Clause, are the better fora for reconciling state constitutional constraints with federal obligations. Id. at 1356–84. Just as reverse-Erie provides an exception to the maxim that federal law must take state courts as it finds them, 384 As Weiser notes, this maxim is often attributed to Henry Hart. Weiser, Constitutional Architecture, supra note 169, at 683. so too do Weiser’s and Hills’s proposals seek to create an exception to the “widespread assumption” that federal law must take states as it finds them.
Davidson offers a still different perspective: How do we treat state laws that interfere with federal–local cooperation? He describes the many ways in which the federal government cooperates directly with local governments, through both direct regulation and federal grant money, in areas of education, telecommunications, immigration, housing, employment, and so on. 385 Davidson, supra note 17, at 965–75. He notes that federal empowerment of local government “is increasingly at odds with the Court’s revival of state sovereignty as the lodestar of its federalism jurisprudence.” 386 Id. at 1000. But Davidson argues that the values the Court channels through its federalism jurisprudence—promoting efficiency, checking governmental tyranny, and reinforcing community and democratic participation—also support federal empowerment of local governments. 387 Id. at 961–62, 1001 (“[T]he very values on which the Court has relied to limit federal power in the face of state resistance support preserving federal power when engaged through local governments.”). To further those ends, Davidson supports judicial deference to federal–local cooperation, even in the face of state law disagreement. 388 Id. at 1032–33.
These scholars present rich accounts of the thorny federal–state–local relationships implicated by federal law. Their proposals provide both a structural nudge against a state of abdication that disempowers state actors from complying with federal law and a backstop that permits states to order their internal subdivisions as they choose. That backstop does allow states to organize their internal governments in a way that perpetuates the front-end, structural barriers to compliance described in Part II, but it also preserves state sovereignty to order its internal affairs. And no matter the internal state structure, no account proposes lifting liability from the states.
These accounts provide a helpful starting point, but they need some adapting to fit the context of abdication. First, abdication extends these accounts beyond cooperative federalism schemes. Abdication requires that not only federal statutory law (like federal election laws) but also federal constitutional law (like the Sixth and Eighth Amendments) empower state actors beyond the limits of state law. Second, Weiser’s account (and perhaps Hills’s account as well) is premised on the idea that states can choose to cease administering those policies. States may withdraw from some federal laws, like the public-assistance laws and other cooperative federalism laws enacted pursuant to Congress’s Spending Clause authority, but they may not decline to enforce constitutional standards like the Sixth and Eighth Amendments or the federal election laws. 389 Federal election laws, for example, are enacted pursuant to Congress’s Elections Clause authority, which permits Congress to require the states to take account without attaching federal dollars. See Weinstein-Tull, Election Law Federalism, supra note 11, at 762–64. Tailored to abdication, these accounts cannot be premised on “exit.”
3. Remedying Abdication. — Finding liability for noncompliance in an abdication context is one part of the solution; remedying it is another. The remedy, especially of an institutional suit, “is commonly perceived as the key to the success or failure of the litigation.” 390 William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L.J. 635, 638–39 (1982). Earlier, this Article described three components of abdication: (1) state refusal to take responsibility for local administration, (2) state refusal to monitor or supervise local administration, and (3) state belief that it has no authority to course correct local noncompliance. 391 Supra text accompanying notes 28–29.
Remedies for abdication-related noncompliance should account for all of those components. As one voting rights advocate put it,
A court order or settlement agreement that doesn’t mandate state supervision of the local entities that have the real, concrete, frontline responsibility to implement what an agreement requires will not be effective. States must work with local entities to make sure they are invested in the implementation and receive education about performing necessary responsibilities. With state supervision, those responsibilities become institutionalized as part of the agency infrastructure—just like any other agency responsibility. 392 E-mail from Lisa Danetz, Legal Dir., Demos, to Justin Weinstein-Tull, Grey Fellow & Lecturer in Law, Stanford Law Sch. (Mar. 29, 2016) (on file with the Columbia Law Review).
In other words, a court order or settlement agreement that does not mandate state supervision of its local governments will likely not result in local compliance. Zimmerman has similarly observed that local governments are more likely to ignore state mandates in states with limited supervisory resources. 393 Zimmerman, supra note 236, at 7 (“If the state has limited supervisory resources, local governments may ignore state mandates in the belief they will not be enforced.”). Courts should therefore clarify, in their orders, not just that states are ultimately responsible for local noncompliance, but also that they must monitor local administration and that they are authorized to bring their local governments into compliance.
An example of a remedy that addressed each factor described above comes from a consent decree the United States reached with the State of Wisconsin in March 2012. 394 Consent Decree at 2–3, 11–14, United States v. Wisconsin, No. 3:12-cv-00197-wmc (W.D. Wis. Mar. 23, 2012), http://www.justice.gov/sites/default/files/crt/legacy/2012/03/28/wi_uocava_cd12.pdf [http://perma.cc/3CCL-DMUK]. Wisconsin, which delegates the responsibility for transmitting absentee ballots to its municipalities, had violated UOCAVA because its municipalities failed to timely transmit some ballots. 395 Id. at 4–5. In order to prevent noncompliance for the then-upcoming 2012 federal elections, the consent decree both explicitly enumerated the powers and duties of various state officials (emphasizing state responsibility) 396 Id. at 2–3 (defining the formal roles of the state, the municipal clerks, the Wisconsin Government Accountability Board, and that Board’s members). and imposed stringent reporting obligations that required state officials to closely monitor whether its municipalities complied with the federal law (requiring state monitoring). 397 Id. at 11–14 (requiring Wisconsin state officials to periodically survey the state’s municipalities to ensure that they are prepared to comply with the federal law, collect compliance data from the municipalities, and transmit that data to the United States). Although the consent decree does not explicitly address whether state law empowers state officials to monitor the municipalities in this way, the decree itself implicitly empowers those state officials (clarifying state authority). 398 In briefly describing this consent decree, I skirt a vibrant debate on the constitutionality and feasibility of complex institutional remedies imposed against states and state officials. See Sandler & Schoenbrod, supra note 175; Fletcher, supra note 390. In a work in progress entitled Federal Rights, Coordination Remedies, and the Reproduction of Inequality, I explore in greater depth the remedial challenges noncompliance with federal law presents in light of horizontally and vertically decentralized states. Justin Weinstein-Tull, Federal Rights, Coordination Remedies, and the Reproduction of Inequality (unpublished manuscript) (Mar. 21, 2017) (on file with the Columbia Law Review).
4. Federal Abdication. — This Article has largely focused on state abdication, and what a coherent judicial response might look like. But there is a story to tell about federal abdication as well. The federal government enacts these laws but relies on states to administer them, fails to fully fund them, 399 See supra notes 172–175 and accompanying text (examining federal funding of public-assistance, federal election, indigent-defense, and ADA programs). and imperfectly enforces compliance. 400 See, e.g., supra note 174 and accompanying text (discussing the federal government’s efforts to ensure state compliance with the Sixth Amendment). This section briefly suggests ways that the federal government could ensure greater compliance with its own laws, short of administering them itself.
First, Congress could address abdication by encouraging greater federal–local cooperation. Congress could authorize federal employees to work directly with local actors—having been delegated responsibilities by the state—to improve compliance with federal law. Karen Tani, in her rich work on the history of rights language in public-assistance administration, describes the ways that federal actors, up against intransigent or uninterested states, worked directly with local actors to improve local administration of federal social security programs. 401 Tani, supra note 34, at 356–58 (describing the ways in which federal actors used informational campaigns, training, and professional connections to increase the professionalism of local administration of social security programs). Tani also describes a concerted effort on the part of federal actors to use explicit rights language to elevate the importance of professional administration of public-assistance programs at the state and local level. Id. at 358. Federal agents could make greater efforts to work around state abdication along these lines.
Congress could also authorize more federal programs to flow directly through local actors, rather than through states. Davidson has written about ways in which the federal government can cooperate productively and directly with local governments, rather than through states. 402 See generally Davidson, supra note 17, at 971–75. Although this approach would foster federal–local interaction, it could also introduce more enforcement problems by pushing compliance monitoring down to the local level. This approach would require the federal government to expend more resources overseeing local-government compliance.
Second, Congress could better account for abdication by requiring increased state accountability. That increased accountability should consist of requirements that any state delegating its federal responsibilities to local governments must: (1) ensure state officials have the authority to correct local noncompliance when necessary, 403 Ensuring sufficient state authority to correct local noncompliance might consist of a federal cause of action that states could use against noncompliant local governments. Courts have in the past noted that the NVRA, for example, does not provide such a cause of action. See, e.g., United States v. Missouri, 535 F.3d 844, 851 n.3 (8th Cir. 2008). And the Supreme Court has been reluctant to create a cause of action when none is explicitly granted. See Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378, 1384 (2015) (holding the Supremacy Clause does not grant a cause of action against states for private actors to enforce federal law); see also Weinstein-Tull, Election Law Federalism, supra note 11, at 797 (calling for Congress to permit states to sue their local governments to increase compliance with federal election laws). (2) actively monitor local compliance and report that information to federal authorities, and (3) acknowledge ultimate responsibility for compliance. 404 The Medicaid Act contains some of these requirements. If a state delegates its administrative responsibilities to local governments, it must also create “methods to keep itself . . . informed of the adherence of local agencies to the State plan provisions” and “[t]ake corrective action to ensure their adherence.” 42 C.F.R. § 435.903 (2016). In addition, because abdication can make local noncompliance difficult to find, Congress should authorize a federal administrative body—whether enforcement or cooperative in nature (or both)—to work with and monitor states and ensure that abdication does not obscure noncompliance at the local level.
Finally, Congress should take seriously the idea that unfunded mandates on states are likely to be abdicated to local governments. This is true of federal statutes that impose unfunded mandates (like the ADA) and of constitutional unfunded mandates (like the Sixth and Eighth Amendments). 405 See, e.g., supra notes 173–175. Although funding statutory requirements often enters the political debate, funding federal constitutional requirements rarely does.
C. Beyond Abdication: Three Outstanding Questions
Permit me now to wade into more speculative waters. Abdication raises a number of important, difficult questions about states and their relationships with both local governments and the federal government, discussed below.
1. Why Do States Abdicate? — This Article has avoided characterizing state rationales for abdication. Nevertheless, we should think about what might motivate a state to abdicate its responsibilities to better understand how to encourage states to embrace their federal responsibilities. Here, I suggest four ways of characterizing state motivation to abdicate federal responsibilities to local governments.
a. The Thoughtful State. — States may intentionally abdicate their federal responsibilities because they genuinely believe that local governments will best administer those responsibilities and that supervision is unnecessary.
Scholars and courts recognize serious benefits from policy decentralization. Local control over public education, for example, is a part of the country’s fabric and, according to the Supreme Court, “essential both to the maintenance of community concern and support for public schools and to the quality of the educational process.” 406 See Milliken v. Bradley, 418 U.S. 717, 741–42 (1974) (overturning a federal district court’s order imposing a multidistrict busing desegregation scheme despite no evidence of a multidistrict segregation problem, in part because “[n]o single tradition in public education is more deeply rooted than local control over the operation of schools”). Many believe local control over elections is similarly important. 407 Election jurisdictions differ dramatically in size, and local governments can tailor the elections process to local needs. See David C. Kimball & Brady Baybeck, Are All Jurisdictions Equal? Size Disparity in Election Administration, 12 Election L.J. 130, 130 (2013) (noting the “tremendous disparities in local election administration”). The Presidential Commission on Election Administration refers to this as a “one size does not fit all” problem. See Presidential Comm’n on Election Admin., supra note 198, at 9 (“Given the complexity and variation in local election administration, the argument goes, no set of practices can be considered ‘best’ for every jurisdiction. . . . There is certainly merit to this position; no one can doubt the limits of nationwide reforms . . . when local institutions, rules, and cultures differ considerably.”). Local administration of elections may also prevent voter fraud and improve accountability. Some members of Congress expressed these views during the debates over the Help America Vote Act, which sought to modernize and standardize the voting process. See H.R. Rep. No. 107-329, at 31–32 (2001) (discussing the role local control plays in preserving election integrity). The thoughtful state seeks these benefits and genuinely believes that its local governments will comply with the federal laws without supervision.
b. The Willful State. — States may intentionally abdicate their federal responsibilities to frustrate federal law and because they believe they can best do so by sending those responsibilities to the local level, where noncompliance is harder to detect.
Consider the case of marriage equality in Kentucky. 408 See supra notes 156–159 (describing the case of the Kentucky clerk who refused to issue marriage licenses to same-sex couples). Prior to the Obergefell decision, Kentucky had no reason to believe that its delegation of marriage-license responsibilities to local governments could operate to frustrate federal law. But once the decision came down and local clerks refused to comply, it became clear that that abdication could be a convenient and politically palatable way to allow small, conservative communities to avoid issuing marriage licenses to same-sex couples. Although Kentucky’s abdication may not have initially been a way to avoid complying with the Constitution, it became a willful accommodation of religious clerks and communities.
Or states may abdicate willfully not to frustrate federal law, but because it is politically advantageous for them to do so. Jonathan Macey has suggested that, at the federal level, Congress delegates policymaking authority to state regulators “when the political support it obtains from deferring to the states is greater than the political support it obtains from regulating itself.” 409 Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 Va. L. Rev. 265, 267 (1990). The same can be true of states. Local autonomy is politically popular. 410 See, e.g., Richard Briffault, The Role of Local Control in School Finance Reform, 24 Conn. L. Rev. 773, 774 (1992) (describing the long history and popularity of local control over education); Richard Briffault, Smart Growth and American Land Use Law, 21 St. Louis U. Pub. L. Rev. 253, 267–68 (2002) (describing why local control over land use is politically popular). In some circumstances, state legislators and officials may be able to maximize their political support by enacting state policies that abdicate federal responsibilities to local governments.
c. The Broke State. — States may abdicate their federal responsibilities because they simply cannot afford to comply with them themselves. The federal laws highlighted in Part I are expensive to administer. Federal election laws like the NVRA require states to fund their own compliance with the laws. 411 See supra note 173 and accompanying text. In addition, we know that states delegate to local governments as a way to save money. As mentioned above, states tend to delegate more responsibilities to their local governments during times of recession. 412 See supra note 274 and accompanying text.
State abdication, therefore, may be a result of burdensome and unfunded responsibilities the federal government places on states. Those obligations arise from constitutional guarantees as well as statutory ones. The Sixth Amendment right to counsel, for example, is an unfunded judicial mandate on the states. 413 See supra note 174 and accompanying text. The Eighth Amendment’s freedom from cruel and unusual punishment is similarly an unfunded judicial mandate on state prison conditions. 414 See supra note 175 and accompanying text.
d. The Inattentive State. — Finally, states simply may not care enough to supervise local compliance. States delegate numerous responsibilities to local governments—both federal and state responsibilities—and many take a hands-off approach to those delegations.
Of course, these state characteristics—thoughtfulness, willfulness, poverty, and inattentiveness—are not mutually exclusive. The same state may abdicate in one policy area because it hopes to frustrate federal law but abdicate in another because it cannot afford to comply.
2. Do States Have a Duty to Supervise? —Borrowing again from the literature on administrative law, we should consider whether there is a duty for states to supervise their local governments, even in the absence of noncompliance. In a recent article, Gillian Metzger argued that the Take Care Clause of the Constitution and general principles of delegation and accountability create a constitutional duty for federal administrative agencies to supervise administration of their federal law charge. 415 Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836, 1874–99 (2015). This constitutional duty “impose[s] a constitutional barrier to administrative arrangements that diffuse governmental power to such a degree that such a minimal level of higher-level oversight is prevented.” 416 Id. at 1901. Metzger envisions the duty to supervise to attach to administrative agencies that delegate to private corporations or administer public institutions, or even to agencies that delegate federal responsibilities to states in the context of cooperative federalism programs. 417 Id. at 1913–26.
As noted above, states now play an important role as agents of the federal government. 418 See supra notes 327–328 and accompanying text. Gluck contends even that the most important powers possessed by states are granted by federal law—or in other words, “federalism by the grace of Congress.” 419 Gluck, [National] Federalism, supra note 1, at 2003. Because states take such a significant role administering federal law, and because Congress relies on states for their expertise, Gluck wonders whether federal law should recognize a form of Chevron deference for state implementation of federal law. 420 See id. at 2024–26 (concluding that the “possibility of [Chevron-like] deference for state implementers is not an easy question,” but since “[s]tate actors are not accountable to Congress or the President as federal agencies are . . . that alone might be a reason for eschewing Chevron-like deference for them”).
In some ways, Metzger’s constitutional duty to supervise is a necessary counterpart to Gluck’s state Chevron deference. If states have become important administrators of federal law, so much so that they deserve deference in their administration, then we should take seriously the possibility that states also have a standing constitutional duty to supervise their administration of federal law. That is, if they choose to delegate their federal law responsibilities to local governments, they then have a duty to supervise local administration of those laws. Where Chevron for states embraces and encourages a state’s ability to tailor federal law to state needs, a state duty to supervise constrains a state’s ability to use its internal ordering to frustrate federal law. The two in concert promote the best kinds of state tailoring while preventing the worst.
It might seem far-fetched to suggest that the Constitution would protect federal law from state misadministration. 421 It might seem especially far-fetched to suggest that the Take Care Clause of the Constitution could create a duty for states. But Metzger’s second justification, grounded more generally in principles of delegation and accountability, is broader and a better fit. See Metzger, supra note 415, at 1903–04 (noting that while the Take Care Clause duty to supervise would apply only to executive agencies, the delegation and accountability justification could apply more widely, including to the President and potentially Congress). But states, and not the federal government, are best able to distinguish state from local authority. Drawing the line between what states are responsible for and what local governments are responsible for is nearly impossible, which makes abdication particularly difficult to police. Indeed, that blurriness is what makes abdication such a powerful tool for escaping federal responsibility. Perhaps, then, a federal constitutional duty on states to supervise their local administration of federal law is the most administrable solution.
Furthermore, we appear to be in a period of flux with respect to individual rights. Kenji Yoshino has documented the contraction of Fourteenth Amendment rights throughout the 1990s and 2000s, and the Court’s unease with major expansions of individual and group rights. 422 See Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 748 (2011) (“[T]he Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, . . . limited Congress’s capacity to protect groups through civil rights legislation[,] [and] . . . repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it.”); see also id. at 755–76 (documenting “the exhaustion of traditional group-based equal protection” through limitations on heightened scrutiny, disparate impact law, and the Fourteenth Amendment enforcement power). At the same time, many of our most pressing concerns—especially criminal justice concerns, like police reform, right to counsel, civil forfeiture, and penal debt reform 423 Local governments administer many important programs that shape our criminal justice system. They often administer state trial courts, for example, sometimes with their own funding. See Malega & Cohen, supra note 160, at 8 tbl.8 (reporting that forty-one percent of state court trial-level judge salaries come from a combination of state and local funding sources and only fifty-eight percent of states fully fund trial-level judge salaries). —seem susceptible to structural, institutional reform litigation rather than individual or group-rights-expanding litigation. It is therefore worthwhile to consider how that structural litigation might proceed and how it will run up against internal state ordering that creates conditions like abdication.
3. What Other Structural Barriers Exist? — Abdication helps us to be clear eyed about the state structural barriers that frustrate compliance with cooperative federalism laws. Each state is a complex piece of machinery with many internal moving parts. As Gerken has noted, adapting a quote by Kenneth Shepsle, governments are a “they,” not an “it.” 424 Heather K. Gerken, Keynote Address: What Election Law Has to Say to Constitutional Law, 44 Ind. L. Rev. 7, 9–10 (2010) (describing how election law scholars can enrich constitutional law scholarship by “imagin[ing] institutions as a collection of political actors” (quoting Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 239 (1992))). Abdication, which deals with vertical coordination within a state, is a particularly vivid example of this maxim.
But federal law also implicates horizontal intrastate coordination that can erect barriers to compliance with federal law. Drawing from our case studies, consider the NVRA, which imposes responsibilities on a number of state actors. Each state must designate a “chief State election official” to be “responsible for coordination of State responsibilities” under the NVRA. 425 52 U.S.C. § 20509 (Supp. 2015). Many states have designated their Secretaries of State in that role. 426 Election Administration at State and Local Levels, Overview, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/elections-and-campaigns/election-administration-at-state-and-local-levels.aspx [http://perma.cc/C4G7-RDDC] (last updated June 15, 2016) (noting that twenty-four states have designated their secretaries of state as the states’ chief elections officials). This designation gets a state only partway to compliance with the NVRA, however. The NVRA requires public-assistance agencies, state disability-services offices, and DMV offices to register applicants to vote. 427 See 52 U.S.C. § 20504 (discussing motor-vehicle offices and disability-services offices). But secretaries of state do not administer those offices: Public assistance offices and state disability services offices are often administered by cabinet-level directors—the director of the department of health and human services, for example—appointed by the governor. DMVs are typically administered by a different state official. Neither director is subject to the authority of the secretary of state.
Cabinet-level state actors will not always agree. Disagreement may be especially sharp when the federal issue at hand is a partisan one (like elections) and when the state is highly unbundled. 428 A state is unbundled when many of its high-level state officials are popularly elected rather than appointed by the governor. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. Chi. L. Rev. 1385, 1396 (2008) (“When two similar policies are produced by different executive authorities without coordination, these policies might conflict or at least not work as well in tandem.”). Intrastate conflict is likely to arise when state officials have allegiance to different political parties or constituencies. That conflict could result in a state-level stalemate that creates noncompliance with federal law. 429 Fahey has done interesting work on intrastate conflict in the context of the Affordable Care Act. See Bridget A. Fahey, Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act, 125 Yale L.J. Forum 56, 57 (2015), http://www.yalelawjournal.org/pdf/Fahey_PDF_zhtyvuqa.pdf [http://perma.cc/DDK9-LVFL]. Federal courts are not likely to indulge these intrastate conflicts. But as discussed above, intrastate conflict can nonetheless create powerful front-end, prelitigation barriers to compliance with federal law. 430 See supra section II.A. What is a DMV director to do, given an intransigent secretary of state and a governor unwilling to spend political capital on compliance? She cannot sue in federal court, as a state typically does not have standing to sue itself. 431 Cf. Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 897 (1991). The lack of case law in this area increases risk of noncompliance with the federal law. 432 See supra section III.A.2.
We are only beginning to understand these state structural barriers. This Article is the first to explore vertical coordination problems. A small handful of scholars have written on horizontal coordination problems. 433 See supra notes 373–384. Very little empirical or descriptive work explores these structural barriers. Whereas state sovereignty and home rule have received scholarly attention, the varied administrative relationships within states have not. How do states monitor responsibilities they delegate to their local governments? What are the tools—legal and political, formal and informal—that states use to bring their local governments in line? What other state structural barriers might exist, that we are not yet aware of?
This Article has argued that abdication illustrates important, problematic, and overlooked aspects of our system of federalism: Legal and political relationships between states and local governments can operate to limit federal power. States can frustrate federal law functionally, even if unintentionally, by abdicating federal responsibilities to local governments. Abdication forces us to think about the overlap between the actors subject to federal law and those responsible for administering it. In important areas of federal policy, these actors only partly overlap. That mismatch, and the ways in which states and courts deal with it, results in noncompliance with important federal laws.
We cannot understand the logic of federalism and decentralization without also understanding the varied, inconsistent, and deeply unfederal relationships between states and their local governments. And any account of federalism that accounts for these state–local relationships must grapple with new questions: Do states abdicate intentionally to frustrate their obligations under federal law? Who speaks for a fractured state? As federal law requires federal and state governments to partner more and more closely in administering federal law, these questions—both doctrinal and functional—will arise with greater urgency.