Legal Commentary

Dan Markel asked me this question in a response to one of my earlier posts. I am on record as arguing that the feds ought to be constitutionally prohibited from empowering local governments to resist state law. Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from Federal Control, 97 Mich. L. Rev. 1201, 1218-1225 (1998). The Court has leaned towards my position, at least as a rule of statutory construction, in Nixon v Missouri Municipal League, 541 U.S. 125 (2004)(a decision implicitly referenced by Dan in his query).

But it is a tribute to the wishy-washiness of my writing that my article was cited for the opposite proposition by Justice Scalia's dissent in Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 448-49 (2002) -- namely, that the doctrine was so unclear that no firm constitutional rule against such federal liberation of local governments could be inferred from the Constitution. Admittedly, I had suggested that the precedents are ambiguous. Nestor Davidson has written a nice piece taking a position more favorable to federal liberation of cities than I did: See his Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007).

The Big Policy Issue is, I think, clearer than the doctrine: I actually think that federalization of local government law is bad for local power even when the feds purport to protect local governments from state law. I so argued in "Is Federalism Good for Localism? The Localist Case for Federalist Regimes," 221 J. L. & Politics 187 (2005). The reason is that local government officials likely have more influence over state legislatures than Congress: The Feds might look like they are local friendly in a particular case, but, in general, they just do not have the time or knowledge to behave like intelligent referees of local officials' inter-local disputes over tax base, territory, and legal powers. Mayors, in short, are fools to go to Congress for help: Their federal Big Brother will end up swallowing them up in a morass of Congressional indifference and incompetence.

There are scholars who have made the opposite argument -- notably, Frank Cross, The Folly of Federalism, 24 Cardozo L. Rev. 1 (2002). Cross argues that, if you like decentralization and local government, you should hate federalism, because states actually interfere with local governments' powers. I suggest that Cross got the data and argument wrong in my J.L. & Politics piece, but interested readers can check out the two articles and decide for themselves.