Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures' Control

Abstract

This paper explores whether and to what extent the federal government ought to have the power to liberate the various institutions that compose a "state government" -- the governor, municipalities, counties, school districts, state administrative agencies, etc. -- from the state legislature's control. The federal government frequently attempts to bestow powers on the subdivisions or branches of a state that are inconsistent with state law. For instance, the Federal Power Commission might give a license to a city to build a dam, even though state law bars the city from such a project. Or the Congress might bestow a grant on a county or a state's governor, barring the state legislature from appropriating or otherwise controlling the grantee's use of the grant. In such cases, the question arises whether the federal government can delegate such powers to the subdivisions or branches of the state even against the will of the state legislature. Must the federal government take the state or local institution as it finds them, or can Congress expand the powers of state and local officials even in the teeth of state laws that bar such officials from exercising such powers?

This paper offers a two-part answer to this question. First, the paper defends the traditional view that the federal government may not bestow powers on non-federal governmental officials when those powers are clearly and expressly barred by state law. The doctrinal basis for this principle is obscure: neither Hunter v. City of Pittsburgh nor "state autonomy" doctrine clearly supports such a result. However, this paper argues that the traditional doctrine, which this paper calls "the principle of state supremacy," makes sense as a matter of sound policy, because state lawmakers are more likely to promote certain efficiencies in designing institutions for local governance that the Congress is likely to disregard.

Second, the paper qualifies the "principle of state supremacy" with a presumption of institutional autonomy: under this presumption, when state law is ambiguous, it ought to be construed to maximize the ability of state and local officials to serve as agents of Congress. Such a canon of construction makes sense as a matter of policy, because it encourages useful intra- and intergovernmental competition between various state and local institutions for federal grant revenues and implementing authority. When state legislatures, municipalities, governors, and other non federal institutions compete with each other for federal grants and implementing authority, then Congress can presumptively bypass non-federal officials who fail to implement federal law faithfully and avoid strategic misrepresentations, insuring that state and local officials faithfully adhere to their intergovernmental bargains to carry out schemes of cooperative federalism. Such a presumption is the mirror image of federalism promoting canons of construction: it helps protect nationalism through the states' political process, insuring that, absent a plain statement from the relevant state lawmaker, Congress will continue to have access to the services of state and local officials.