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Rude and obnoxious comments are a reflection of the speaker, not you! We are simply older versions of our younger selves. The bullies on the playground grew up and became bullies at work. Don’t give them your power.


Tim, I wish it weren’t true, but sadly it is, at least some of the time.

One of the things Tom mentioned on episode #164 is that it’s not usual for narcissists to end up running teams, divisions, and even companies. When I think of the people I’ve come across in my career that were most narcissistic, many of them have been a very senior leadership roles.


Jessica says

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Brent Meredith. says

I once had a manager that became so upset and vile when it appeared we would miss an unrealistic deadline after I defended one of my team for not releasing a drawing on time that she could not talk to me without being caustic.she resorted to bypassing me and telling one one my team members to tell me what needed to be done and that if things didn’t happen I’d be sorry. Many friends and associates suggested I quit working for her and move to another project. I enjoyed the work and the project enough to look past her attitude toward me. I copped by enjoying the work and keeping the rest of the team out of her line of fire. I recognized this was her first major role in a leadership position working with a major customer and that she was under a lot of stress to perform and didn’t want to look bad. I had a good working relationship with my counterparts on the customer team which helped alleviate some of the pursue both on myself and my boss. About 6 months later on a business trip that required just the two of us to go on, as we were driving I mentioned that I was sorry I hadn’t met her expectations and asked what could have been done differently to have prevented the problems. As she pondered the point and realized that there had been other more significant milestones missed unrelated to mine we started a discussion that became a turning point in our relationship. We parted friends at the end of the successful program. if I had left, I don’t believe the project would have turned out as well as it did, more pressure and anger would have fallen on other team members, and this new manager would likely have not grown and learned the valuable lessons she needed to know to become a better manager.


Columbia Law Review
Vol. 117 No. 4

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.

* Thomas C. Grey Fellow and Lecturer in Law, Stanford Law School. I am indebted to the many friends and colleagues who entertained conversations on this topic and read early drafts. My deep gratitude to Tendayi Achiume, Michelle Anderson, Abbye Atkinson, Jessica Bulman-Pozen, Jud Campbell, Nestor Davidson, Sarah Duranske, David Engstrom, Barbara Fried, Heather Gerken, Andrew Gilden, Cathy Hwang, Pam Karlan, Stephen Lee, Liz Magill, Jeannie Merino, Bernie Meyler, Anne O’Connell, Nate Persily, Dara Purvis, Richard Re, Briana Rosenbaum, Reva Siegel, Shirin Sinnar, participants in workshops at the University of Arkansas, Florida State University, Northwestern University, Stanford University, and Tulane University Law Schools, Victor Obasaju and his team at the , and Norm Spaulding, for his generous commitment, encourage­ment, and guidance. I am especially grateful to the many advocates and state officials who found time away from the press of litigation to discuss their experiences with me, including Emma Andersson, Lisa Danetz, Jennifer Granholm, Raul Macias, Margot Mendelson, Lori Shellenberger, and others who preferred no attribution. Max Alderman and Peter Kurtz provided crucial research assistance.




Much federal law regulates the conduct of states. States, in turn, delegate many of their federal responsibilities to local governments. This Article argues that states do more than delegate those responsibili­ties; they 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. Idaho has abdicated that responsibility to its local governments: State law makes Idaho’s counties responsible for providing counsel to indigent defendants. In 2015, a class of indigent defendants sued Idaho for failing to discharge its Sixth Amendment responsibilities. 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. The Idaho state court agreed and dismissed the complaint. It held that although the state was “ultimately responsible” for complying with the Sixth Amendment, and although the plaintiffs made “troubling allega­tions” about the state’s indigent defense system, the governor and other state officials could not be held accountable because they lacked author­ity to remedy the violation.

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, 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. Federal public-assistance programs, like food stamps and cash assistance, impose requirements onto states that states delegate to their local governments. 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. Consistent across these policy areas, states use their decentralized structures to attempt to avoid liability under federal law.

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. 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, 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, 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. They have argued that disagreement between federal, state, and local governments can create policy “churn,” which creates productive national consensus around dif­ficult political issues. 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. 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.

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.

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, and some federal policy areas require statewide remedies unavailable at the local level. 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. 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. 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, 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, (2) the state is unaware of local noncompliance because it does not monitor or supervise local action, and (3) the state is powerless to correct local noncompliance. All three positions need not be present to constitute an abdication argu­ment. 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. 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. — Most federal public-assistance pro­grams involve some state administration. 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.

New York is among the states that delegate their federal public-assistance-administration responsibilities to local officials. 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.” County social-services commissioners administer public-assistance funds, whether federal, state, or local in origin.

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. 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.

The courts ruled for the state in one case and against the state in the other. In the first, , the court held that the state retained ultimate responsibility for local noncompliance with the laws, despite its abdication argument. 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. 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.”

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. To receive the federal money attached to the Food Stamp and Medicaid Acts, New York agreed to administer the programs. It could not then avoid its responsibilities under that agreement by giving them away to local governments. 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.

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. The court con­structed a hierarchy of authority for public-assistance administration using state statutes and case law. It held that despite New York’s delega­tion, state law assigned ultimate responsibility for noncompliance to the state.

Just a few years later, however, a different Second Circuit panel reached a contradictory opinion. In , 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. The plaintiffs claimed that public-assistance offices in New York City deterred potential applicants from applying for the programs. Unlike in , the plaintiffs did not preserve claims under the federal public-assistance laws or disability laws themselves. 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.

Again, New York argued that it was not responsible for failing to supervise local administration of public-assistance programs. This time, the court agreed: It declined to find New York responsible for the city’s noncompliance. The court relied on the strict vicarious liability stand­ards set out in , in which the Supreme Court held that governments were responsible only for unlawful acts “implemented or... executed pursuant to a gov­ern­mental policy or custom.” The 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. 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.

Other states have similarly attempted to avoid responsibility for non­compliance with federal public-assistance laws by deploying abdication arguments. In , for example, plaintiffs eligible for food stamps sued a Virginia state official for statewide noncompliance with various requirements of the Food Stamp Act. The state official argued that Virginia’s decentralized system of public-assistance administration excused him from responsibility for local violations of the federal laws. 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....” The Ninth Circuit has held similarly in response to arguments made by California.

2.. — 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. County jails also house state prisoners enrolled in in-custody drug treatment. California creates these delega­tions through its authority under the state penal code and through contracts between the state and the counties. These delegations affect thousands of prisoners.

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. It has resulted in a dramatically increased number of state prisoners in county jails.

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. The parties litigated the case over many years; the plaintiffs ultimately prevailed and received sev­eral remedial orders forcing the state to comply.

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. 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. The state also argued that the remedial orders violated the anticommandeering principles set forth in because they required state employees to administer a federal program.

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.” 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. 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.

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.” 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.

Again, the Ninth Circuit disagreed. It held that realignment did “not relieve defendants of all responsibility for the discrimination suffered by class members housed in county jails, past and present, or of their obligation to assist in preventing further violations.” It empha­sized the state’s own role in housing the prisoners, even though the plaintiffs were not specifically housed in state prison. 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.

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.” 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.” 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. Joan Petersilia has described these conditions as “startlingly familiar” to and “closely mirroring” prison-condition problems at the state level. She has predicted that “a surge of county-level Eighth Amendment suits is likely to emerge.” 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, questions about state liability are bound to be a part of future litigation.

3.. — 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 , requires states to provide defense counsel to criminal defendants who cannot afford to hire their own. 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. Fewer than half of the states fully fund their indigent defense programs. Even states that fully or partly fund their indigent defense programs delegate significant admin­istrative responsibilities to their local governments.

Michigan was an example of a state with a highly decentralized sys­tem of indigent criminal defense. As of 2007, Michigan law required county court chief judges to appoint defense lawyers to criminal defend­ants who could not afford one themselves. Michigan counties were responsible for fully funding their own criminal defense programs, directly from the county treasury.

In 2007, a putative class of criminal defendants sued the State of Michigan and the Michigan governor in Michigan state court and alleged that Michigan’s highly decentralized indigent-defense scheme violated their right to counsel. 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.” Specifically, the plaintiffs brought section 1983 claims pursuant to the Sixth and Fourteenth Amendments and similar state constitutional claims.

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. 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.

Reflecting the complexity of abdication arguments, the Michigan courts struggled with the case. The trial and appellate courts found for the plaintiffs, 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. 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: 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. 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. 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. 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.

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. 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.

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.”

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.” It held that “[u]nquestionably, the State is ultimately responsi­ble for en­suring constitutionally-sound public defense.” But it also held that (1) the plaintiffs lacked standing to bring suit because the alleged harm was not caused by the defendants 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.” The court held that it could not “legislate specific stand­ards” or “provide funding to enact those standards.”

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.

4.— States play an important role in administering federal election laws. In particular, the National Voter Registration Act of 1993 (NVRA) requires states to offer voter-registration opportunities in a variety of state offices, 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, and the Help America Vote Act (HAVA) requires states to update their voting machine technology. Each statute imposes responsibilities directly onto states, even though many states delegate significant election responsibilities to their 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. I highlight Alabama as an example here, but it is not alone in making these arguments.

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. The absentee election manager accepts absentee ballot applications and transmits those ballots.

The United States has sued Alabama repeatedly for failing to comply with the federal election statutes described above. In 2012, the United States sued Alabama for failing to comply with UOCAVA. 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. 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.” Later in the litigation, Alabama described its difficulties enforcing UOCAVA given the independence of local election officials:

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. “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.”

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. 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. In most cases, courts reject these arguments and find that liabil­ity rests on the state, despite delegation to local governments.

But not all of the election cases are so clear. In , the United States sued Missouri for noncompliance with section 8 of the NVRA, which regulates voter-list management. 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. The court mostly disagreed and found that local noncompliance bore on whether Missouri failed to oversee compliance with the NVRA. The court held, however, that Missouri could not be required to the NVRA against its local election officials. The court declined to shift the burden of enforcing compliance onto Missouri “without clear direction from Congress.”

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. Plaintiffs have successfully challenged state abdication of fed­eral education responsibilities to local school districts. In , 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.

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. Further­more, the agencies argued that the relief the plaintiffs were requesting exceeded the agencies’ authority.

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. 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. 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.”

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. 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.

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 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.” 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.” Michigan has made similar arguments, which the Sixth Circuit rejected because the state controlled its local governments.

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, to attach to prelitigation abdication.

Consider the case of marriage licenses. Three months after the Supreme Court mandated marriage equality in , a clerk in a small Kentucky county refused to issue marriage licenses to gay applicants. 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. 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. 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. 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. 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. One commentator has described how that law allowed state legislators to ignore evidence that local school districts are teaching creationism.

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.” It also gives Congress the authority to “make or alter” those laws, which Congress has exercised in the form of the election laws discussed above. 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.

Public-assistance laws like the Food Stamp Act and the Medicaid Act are statutory. In these laws, the federal government offers money to states to administer the programs. 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 .

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 case brought both federal statutory (ADA) and constitutional (Eighth Amendment) claims. 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. 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. The federal government provides no funding for state indigent-defense efforts, and no federal agency pro­vides oversight or rulemaking guidance. Neither the Eighth Amendment nor the ADA provides funding for states to ensure their prisons and jails comply with constitutional and statutory standards.

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. When the federal law at issue is court-created, plaintiffs bring claims pursuant to section 1983. But as the Second Circuit noted in , section 1983 may impose a different or stricter standard for finding state liability. 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. 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. 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. Still others find state liability on efficiency grounds. Some cases are solicitous of state law and find state responsibility based on state law relationships. Others hardly mention state law. The opinions rarely cite to one another, and advocates only rarely cite to other areas of the law when facing abdication arguments.

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. 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. Because New York had, to some extent, responded to the noncompliance of its local governments, it was not liable. 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.

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. 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. 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.

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.

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.

A. Consequences

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. 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 of the noncompliance.

1.— 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.

In the context of indigent defense, commentators have noted that nationally, states have failed to fulfill the promise set out by the Sixth Amendment. Former Attorney General Eric Holder has stated that “America’s indigent defense systems exist in a state of crisis.”

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.

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. These arguments are widespread in the state briefs filed in the abdication cases described in Part I.

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. 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. California officials did the same when they were sued because conditions in California county jails violated the ADA and the Eighth Amendment. Virginia officials did the same when sued for local-level violations of the Food Stamp Act.

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 ) 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. 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.”

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. Presumably, Governor Otter believed that he was either politically or legally constrained from complying with the federal law himself. 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, resulting in delayed litigation while the issues proceed up through the appeals system.

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. First, the federal government is not staffed to monitor the 40,000 local governments that administer federal law. States create new local governments frequently; the federal government would be hard pressed to keep up. 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. 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.”

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. 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.” Absent serious scrutiny, local election problems can “pass under the radar, leaving some groups vulnerable in the absence of a firm regulatory 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. 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. 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.” “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.”

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. Suing one local government, without the state, is ineffective when the local government has no money to remedy its violation.

2.. — 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.

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. 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.

Slack permits states to evade accountability for their actions. In , 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. 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: The people would not know whom to hold responsible for the law.

This concern applies with even more force in the abdication con­text. In , the Court worried that federal–state slack diminished political accountability. 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 , John Hart Ely argued that courts should act to ensure that voters are able to “clear[] the channels of political change.” 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.

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.

B. Causes

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.. — 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. Individual states grant home rule to local govern­ments either legislatively or constitutionally. Most states provide some form of home rule, though each state has unique variations.

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, the indigent-defense context, the public-assistance context, and the election law context. 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.” Although California local governments do not possess as much fiscal autonomy as they once did, the California constitution gives local governments broad political and policymaking authority.

Home-rule laws are a helpful starting place for understanding state–local relationships, but other dynamics explain those relationships as well. 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.” 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, election law, and indigent defense contexts. 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.

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, which has had its own long-standing struggle with the State of New York for autonomy. 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. 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. 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.” But the Alabama Constitution has one of the weakest home-rule provisions in the country. 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. The state legisla­ture provides “zealous... oversight and control” over local governments.

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:

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, but generalizes his claim to state–local relations more broadly. 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.”

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. 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.

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. 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. 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.” The measures were “modestly” effective, but only for local offices that were already largely compliant with the NVRA. The intervention failed to increase compliance in noncompli­ant local offices.

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.” 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.

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.’” 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. 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. A similar dynamic has occurred in the elections context.

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. 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 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. 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. 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 —even in states that might otherwise sympathize with those laws.

2. — 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 “, which ha[ve] the respon­sibility for the administration of the federally aided public-assistance programs within such State.” Medicaid requires states that delegate administrative responsibility to local governments to closely monitor that delegation. Although these provisions do not prevent states from making abdication arguments in the context of these stat­utes, they do provide federal authority that courts use to reject these arguments.

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 , private plaintiffs sued state officials pursuant to the NVRA’s public-disclosure provision seeking voting records from the 2014 Senate election. Mississippi Secretary of State Delbert Hosemann deployed the doctrinal ambiguity of the case—which held that states could not be required to enforce the NVRA against noncompliant local gov­ernments —in his response. He argued that he was “not a proper party to plaintiffs’ putative causes of action asserted” —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.”

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.” In , 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. The Court held that Congress could not compel a state “to enact or administer a federal regulatory program.” A few years later in , 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. The Court held “that Congress cannot circumvent that prohibition by conscripting the State’s officers directly.”

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. Multiple states have also cited the anticommandeering doctrine in the elections context.

Courts have largely rejected these arguments, 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.

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. Tailoring to local tastes has long been a value of federalism. Decentralized policy encourages local diversity, inno­vation, and interjurisdictional competition. A decentralized govern­ment, the theory goes, is “more sensitive to the diverse needs of a heterogenous [sic] society.”

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. 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.

1.. — 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. 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.” 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.”

Heather Gerken has also breathed new constitutional life into local governments with her formulation of “federalism-all-the-way-down.” 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.” 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.

These theories—that celebrate the value of local constitutionalism and dissent in the context of national policy —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.” 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.” Gerken similarly notes that “it is perfectly acceptable for the national majority to play the Supremacy Clause card whenever it sees fit.”

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.

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 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. 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. A local constitutionalist might celebrate that kind of local dissent because it affected the national political landscape.

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. 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.. — 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. 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. Scholars and courts call this kind of interaction “cooperative federalism.” Congress has continued to inno­vate in the ways that it uses federal–state cooperation to further federal ends.

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. Others have used the terms “picket fence federalism” and “marble cake federalism.” Still others have coined federalism language to describe policy-specific relationships, like immigration federalism, national security federalism, election law federalism, and so on.

Whatever you choose to call it, federal law now “reaches for the states” in a wide range of statutory contexts. 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.”

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. 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. 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, , the Supreme Court consid­ered whether a Rhode Island court was obligated to entertain a federal claim that conflicted with a state law. 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.” 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.”

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. 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.

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. 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, 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. — Richard Ford has observed that “[l]ocal govern­ment exists in a netherworld of shifting and indeterminate legal status.” It is therefore unsurprising that opinions addressing abdica­tion treat local governments in different ways. Some consider local governments primarily as contractees with the state. 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. 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.

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 of the state itself. The prevailing legal authority on this point, set out by , 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.” In , 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. The Court held that “[t]he number, nature and duration of the powers conferred upon [cities]... rests in the absolute discretion of the State.” 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....”

In recent years, scholars have debated whether remains good law, whether it describes sound policy, and whether it accurately characterizes the powers and flexibility that local governments wield in practice. Commentators have noted the emergence of an alternate doctrine recognizing that local governments are more than administra­tive arms of the state: 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.” In these cases, courts treat local governments as representative bodies that deserve their own autonomy and are accountable for their own actions.

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. and 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.

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.

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. But relying on state law hierarchies of authority to determine state liability is unreliable: State law does not always accurately mark abdication. States have different cultures of local autonomy that do not always track the approach set out in the state law.

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. 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, as do the federal election laws, and its progeny, and language accommodation in education laws. 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.

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. 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 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.

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.— 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. 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.” Missouri cited the lack of fed­eral money to enforce the NVRA as evidence that Congress did not intend states to play an enforcement role. 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. Specifi­cally, the Commissioner ar­gued that he lacked state authority to discipline or remove local public-assistance providers or to vary their pay and that “[a]t the state level, clearly the Commissioner alone is not empowered to control and compel compliance with federal program requirements.” “Plaintiffs and the Court must take the Commissioner as they find him.” The Commissioner argued that “[a] public officer is a creature of legislation and the legislature alone deter­mines the duties and authorities of the post.”

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.” 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. 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. Erin Ryan has called regulatory fields that implicate both federal and state laws an “interjurisdictional gray area.” 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. 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.

Philip Weiser has proposed a different approach, forged from the context of state laws that fail to adequately state actors to comply with federal laws. He suggests that courts adopt a standard analogous to the reverse- doctrine 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. 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”: 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. Just as reverse- provides an exception to the maxim that federal law must take state courts as it finds them, so too do Weiser’s and Hills’s proposals seek to create an exception to the “widespread as­sumption” that federal law must take 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. 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.” 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. To further those ends, Davidson supports judicial deference to federal–local cooperation, even in the face of state law disagreement.

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 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. Tailored to abdication, these accounts cannot be prem­ised on “exit.”

3.. — 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.” 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.

Remedies for abdication-related noncompliance should account for all of those components. As one voting rights advocate put it,

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. 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. Wisconsin, which delegates the responsibil­ity for transmitting absentee ballots to its municipalities, had violated UOCAVA because its municipalities failed to timely transmit some bal­lots. 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) and imposed stringent reporting obligations that required state officials to closely monitor whether its municipalities complied with the federal law (requiring state monitoring). 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).

4. — This Article has largely focused on abdication, and what a coherent judicial response might look like. But there is a story to tell about abdication as well. The federal gov­ernment enacts these laws but relies on states to administer them, fails to fully fund them, and imperfectly enforces compliance. 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. 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. 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, (2) actively monitor local compliance and report that information to federal authorities, and (3) acknowledge ultimate responsibility for compliance. 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). 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. — 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.. — 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.” Many believe local con­trol over elections is similarly important. The thoughtful state seeks these benefits and genuinely believes that its local governments will comply with the federal laws without supervision.

. — 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. Prior to the 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.” The same can be true of states. Local autonomy 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.. — 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. 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.

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. The Eighth Amendment’s freedom from cruel and unusual punishment is similarly an unfunded judicial mandate on state prison conditions.

d.. — 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. —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. 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.” 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.

As noted above, states now play an important role as agents of the federal government. 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.” 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 deference for state implementation of fed­eral law.

In some ways, Metzger’s constitutional duty to supervise is a neces­sary counterpart to Gluck’s state 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 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. 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. 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 —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. — 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.” Abdi­cation, which deals with coordination within a state, is a particularly vivid example of this maxim.

But federal law also implicates 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. Many states have designated their Secretaries of State in that role. 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. 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. 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. 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. 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. The lack of case law in this area increases risk of noncompliance with the federal law.

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. 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.

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.

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Thursday, April 19, 2018

The Phoenix Chorale may be Grammy-winning artists, but members don’t let that get to their heads as they tackle their day jobs.

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Alto Nina Maxton is the manager of 180 Degree Automative Garage. She says that she only sings jokingly in the office, never operatically. Maxton says the 9-to-5 job satisfies one half of her brain, while the Chorale satisfies the other.

Tenor Josiah Hagstrom works in optometry during the day. He says that his day job and his music aren’t totally different, as both are communicative jobs.

Holly Sheppard,an animator and artist, also sees parallels between her two jobs. Both are art forms in which an audience will gain an experience from what she is making.

“I don’t think a day goes by where I don’t sing,” Sheppard says. “It’s just part of me. I love the artistic nuance, the emotion.”

For more information on the Phoenix Chorale, go to The Chorale has its last performance of the season, “Sing of Spring,” from April 27-29 in venues across the value.

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Arizona teachers to announce whether or not they're going to strike

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Nina Makston, alto, Phoenix Chorale Josiah Hagstrom, tenor, Phoenix Chorale Holly Sheppard, alto, Phoenix Chorale

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Host Geoffrey Baer takes viewers across the country to tell the stories behind legendary streets, monuments and man-made marvels that changed our country forever.

Shaun Evans returns for a fifth season of the popular series as the young Endeavour Morse, before his signature red Jaguar but with his deductive powers already running in high gear. Sundays at 8 p.m., beginning June 24.


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