Unfunded Federal Mandates and State Judiciaries: A Question of Sovereignty

Abstract

DOJ’s recent demands leave state court systems with a difficult choice. On one hand, they can simply assume the legal legitimacy of the new LEP mandates and try their best to implement the demands despite disagreements or budgetary constraints. On the other hand, state courts could place at risk at least a portion, and potentially all, of their federal funding and prepare to defend against DOJ in civil litigation by refusing to adopt the demands wholesale. The latter option would require courts to take a somewhat more confrontational stand, but as Justice Markman notes, forcing DOJ to carry the burden of proving the legal basis for its demands may provide a viable strategy to ensure that the proper contours of American federalism are preserved, and respect for state sovereignty is maintained.