Abdication and Federalism

74 Pages Posted: 7 Aug 2016 Last revised: 29 May 2017

Date Written: November 27, 2016


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.

Keywords: Federalism, federal courts, states, local government, localism, election law, criminal procedure, right to counsel, public assistance, incarceration

Suggested Citation

Weinstein-Tull, Justin, Abdication and Federalism (November 27, 2016). 117 Columbia Law Review 839 (2017), Stanford Public Law Working Paper No. 2818702, Available at SSRN: https://ssrn.com/abstract=2818702

Justin Weinstein-Tull (Contact Author)

Arizona State University College of Law

111 E Taylor St.
Sandra Day O'Connor School of Law
Phoenix, AZ 85004
United States
5419683153 (Phone)

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