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

Abstract

This paper explores whether and to what extent federal ought to have power to liberate various institutions that compose a government -- governor, municipalities, counties, school districts, state administrative agencies, etc. -- from state legislature's control. The federal frequently attempts to bestow powers on subdivisions or branches of a state that are inconsistent with state law. For instance, Federal Power Commission might give a license to a city to build a dam, even though state law bars city from such a project. Or Congress might bestow a grant on a county or a state's governor, barring state legislature from appropriating or otherwise controlling grantee's use of grant. In such cases, question arises whether federal can delegate such powers to subdivisions or branches of state even against will of state legislature. Must federal take state or local institution as it finds them, or can Congress expand powers of state and local officials even in teeth of state laws that bar such officials from exercising such powers? This paper offers a two-part answer to this question. First, paper defends traditional view that federal may not bestow powers on non-federal governmental officials when those powers are clearly and expressly barred by state law. The doctrinal basis for this is obscure: neither Hunter v. City of Pittsburgh nor autonomy doctrine clearly supports such a result. However, this paper argues that traditional doctrine, which this paper calls the of state supremacy, makes sense as a matter of sound policy, because state lawmakers are more likely to promote certain efficiencies in designing institutions for local governance that Congress is likely to disregard. Second, paper qualifies principle of state supremacy with a presumption of institutional autonomy: under this presumption, when state law is ambiguous, it ought to be construed to maximize ability of state and local officials to serve as agents of Congress. Such a canon of construction makes sense as a matter of policy, because it encourages useful intra- and intergovernmental competition between various state and local institutions for federal grant revenues and implementing authority. When state legislatures, municipalities, governors, and other non federal institutions compete with each other for federal grants and implementing authority, then Congress can presumptively bypass non-federal officials who fail to implement federal law faithfully and avoid strategic misrepresentations, insuring that state and local officials faithfully adhere to their intergovernmental bargains to carry out schemes of cooperative federalism. Such a presumption is mirror image of federalism promoting canons of construction: it helps protect nationalism through states' political process, insuring that, absent a plain statement from relevant state lawmaker, Congress will continue to have access to services of state and local officials.