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Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty

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Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty DAVIDSON_BOOK 5/17/2007 5:10 PM COOPERATIVE LOCALISM: FEDERAL-LOCAL COLLABORATION IN AN ERA OF STATE SOVEREIGNTY Nestor M. Davidson* INTRODUCTION................................................................................... 960 I. BACKGROUND: FEDERAL-LOCAL COOPERATION AND CONSTITUTIONAL STRUCTURE................................................... 964 A. The Importance of Direct Federal-Local Cooperation...... 966 B. Local Autonomy and the Intermediary of the States.......... 975 II. LOCAL GOVERNMENT POWERLESSNESS AND STATE SOVEREIGNTY .............................................................................. 979 A. Plenary State Control of Local Governments and the Unitary State........................................................................... 980 B. Modern Federalism, State Sovereignty, and Local Governments.......................................................................... 984 III. THE TRADITION OF FEDERAL EMPOWERMENT OF LOCAL GOVERNMENTS ............................................................................ 990 A. Cracks in the Façade of the Unitary State............................ 991 1. Local Disaggregation from the States............................ 991 2. Shadow Constitutional Protection for Local Autonomy ........................................................................ 994 B. Federal Empowerment of Local Governments .................. 995 1. Autonomy and the Authority to Act.............................. 996 2. Fiscal Federalism, Local Spending, and State Interference ...................................................................... 998 3. Other Federal Intervention in State Ordering............... 999 IV. A LOCALIST VIEW OF FEDERAL EMPOWERMENT IN AN ERA OF DEVOLUTION AND DECENTRALIZATION ........................... 1000 A. The State Supremacy View in Theoretical Perspective..... 1001 B. A Tale of Two Subsidiarities: A Localist View of Federal Empowerment........................................................ 1005 * Associate Professor, University of Colorado Law School. J.D., Columbia Law School. The author wishes to thank Richard Collins, Heather Elliott, Mark Fenster, Audrey McFarlane, Clare Huntington, Laurie Reynolds, Peter Salsich, Pierre Schlag, Richard Schragger, and Philip Weiser for their insights, and Keely Ambrose and Mat- thew Lasek for their excellent research assistance. An earlier version of this Article was presented at the 2006 Annual Meeting of the Law and Society Association. 959 DAVIDSON_BOOK 5/17/2007 5:10 PM 960 Virginia Law Review [Vol. 93:959 1. Decentralization and Devolution in Contemporary Federalism...................................................................... 1005 2. The Localist View of Federal Empowerment ............. 1008 3. Critiquing the Anxiety over Lawless Localities.......... 1017 V. LOCAL PAROCHIALISM AS A LIMIT ON FEDERAL EMPOWERMENT ......................................................................... 1023 A. The Perils of Local Parochialism and the Regionalist Solution................................................................................. 1023 1. Local Autonomy Revisited........................................... 1023 2. The Regionalist Solution and the Federal Role .......... 1026 3. A Federal Imperative? .................................................. 1029 B. Beyond the Jurisprudence: The Pragmatics of Intergovernmental Cooperation ......................................... 1032 CONCLUSION: THE ALCHEMY OF FEDERAL-LOCAL COOPERATION............................................................................ 1033 INTRODUCTION ONTEMPORARY debates about federalism and localism of- C ten proceed with, at best, a glancing reference to each other.1 Commentators portray parallel, largely disconnected worlds in which the federal government relates only to the states, and the states, in turn, hermetically encompass local governments. In prac- tice, however, numerous federal regulatory, spending, and en- forcement policies actively rely on the participation of local gov- ernments independent from the states. Indeed, direct relations between the federal government and local governments—what this Article calls “cooperative localism”—play a significant role in ar- eas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social ser- vices, immigration, and environmental protection, among other ar- eas of vital national concern. Despite the importance of this facet of intergovernmental rela- tions, cooperative localism exists in an increasingly tenuous legal 1 Courts and commentators tend to focus on federal-state relations and state-local relations, but rarely on federal-local relations. See, e.g., Daniel J. Elazar, Cooperative Federalism, in Competition among States and Local Governments: Efficiency and Equity in American Federalism 65, 66 (Daphne A. Kenyon & John Kincaid eds., 1991). DAVIDSON_BOOK 5/17/2007 5:10 PM 2007] Cooperative Localism 961 landscape. Direct federal-local cooperation invokes two competing jurisprudential traditions. The prevailing view of local government identity in federal law is one of fundamental powerlessness, with localities at the whim of states’ plenary authority. In a lesser- recognized tradition, however, courts have allowed local govern- ments to invoke federal authority to resist assertions of state power. This judicial space for federal empowerment has granted local governments both a measure of autonomy to act in the ab- sence of state authority and an ability to check state control. The Supreme Court’s contemporary revival of state sovereignty as the cornerstone of its federalism jurisprudence is now bringing these doctrinal traditions into direct confrontation. The Court is increasingly suggesting that state control over local governments is a fundamental aspect of state sovereignty triggering judicial limits on federal power.2 A clash is thus looming between plenary author- ity over local government as a facet of resurgent state sovereignty and the protection that has been afforded to federal-local coopera- tion. When this confrontation comes to a head, limiting federal au- thority to empower local governments would be a mistake with po- tentially far-reaching consequences. Reflexively protecting state supremacy over the alignment of local and federal interests would interject the judiciary into questions of intergovernmental relations that are best left to the political process. This Article proposes a new framework for conceptualizing fed- eral empowerment of local governments that is not only consistent with the Court’s contemporary view of federal structure, but in fact advances the normative and pragmatic goals the Court is seeking to achieve. The Court in its modern federalism jurisprudence has built a largely instrumental case for devolving and decentralizing governmental power. This vision of federal structure privileges state sovereignty in order to promote efficiency and intergovern- mental competition, check governmental tyranny, draw on plural- ism and the experimental values of decentralized governance, and reinforce community and democratic participation. These core in- strumental concerns are served even more forcefully by enhancing the autonomy of local governments. Thus, the very values of feder- 2 See infra Section II.B. DAVIDSON_BOOK 5/17/2007 5:10 PM 962 Virginia Law Review [Vol. 93:959 alism that the Court invokes to enhance state sovereignty provide a compelling case for the particular exercise of federal authority rep- resented by cooperative localism—in essence, a localist grounding for national power. Cooperative localism carries risks as well as potential. For every instrumental argument in favor of bolstering local autonomy, there is a counterargument. Local governments often give life to the Madisonian fear of the tyranny of local majorities: they sometimes reinforce racial, ethnic, and economic segregation; exclude outsid- ers; and generate significant externalities for neighboring commu- nities. In other contexts, scholars have argued for regionalist solu- tions to these problems of local parochialism. A regionalist perspective, I argue, can be incorporated into the jurisprudence of federal-local cooperation, tempering the scope of federal power and local autonomy to ensure that federal interests are not under- mined by local parochialism. This proposed conception of cooperative localism sheds new light on contemporary debates in both localism and federalism.3 First, it re-conceives the legal status of local governments when op- erating in federal-local regimes, challenging the prevailing view of local governments as powerless instrumentalities of the states. In the cooperative localism context, local governments act neither as subservient departments of state government nor as islands of in- dependent authority. Rather, local governments act under an al- ternative and underappreciated source of autonomy, one bounded 3 The jurisprudence of federal-local relations has been an area of relative silence in the legal literature. One notable exception is the work of Roderick Hills. Hills has ar- gued for a rule of interpretation that would read ambiguous federal and state law to preserve the institutional autonomy of the states while recognizing some scope of fed- eral interest in fostering intrastate competition for federal resources. See Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Offi- cials from State Legislatures’ Control, 97 Mich. L.
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