The Dual-Faceted Federalism Framework and the Derivative Constitutional Status of Local Governments

By Cannon, Michael Q. | Brigham Young University Law Review, September 1, 2012 | Go to article overview

The Dual-Faceted Federalism Framework and the Derivative Constitutional Status of Local Governments


Cannon, Michael Q., Brigham Young University Law Review


I. Introduction

What is the federal constitutional status of local governments? This question, though capable of succinct and simple articulation, is one that seemingly lacks a similarly short or simple answer. In fact, the question is one that has bedeviled the United States Supreme Court for many years, appearing most frequently - though sometimes only implicitly - in those cases that have grappled with recurring questions of whether particular constitutional restrictions place limitations on the ability of states to freely structure their local governments.1 This grappling has often led to facially inconsistent results.2

One important commentator, Professor Briffault, has highlighted these apparent facial inconsistencies by identifying three facially distinct conceptualizations of local governments appearing in Supreme Court opinions that have examined the federal constitutional status of such entities.3 First, some of these cases portray local governments as mere instrumentalities of the state, with no independent status in the federal constitutional hierarchy.4 Second, other cases conceptualize local governments as independent polities, entitled to some independent recognition in the constitutional hierarchy.5 Finally, other cases seem to view certain local governments as quasi-proprietary firms, much akin to private business corporations.6

Briffault's observation of this inconsistency raises several fundamental questions. First, is there a rationalizing principle underlying these decisions at all, or are these inconsistencies simply a result of the Supreme Court's ad hoc approach?7 Second, if there is a rationalizing principle, what is the principle and how does it functionally operate? Finally, if there is a rationalizing principle, what does this rationalizing principle suggest about the federal constitutional status of local governments? I attempt to answer the first two questions, with the primary aim of being better able to answer the third.

In this Comment, I explain that there is an implicit rationalizing principle underlying relevant Supreme Court precedent: a presumption of federalism.8 I further explain that each of Briffault's three "conceptualizations" of municipalities is really nothing more than a consistent manifestation of the interaction between supremacy and the presumption of federalism in the Court's jurisprudence.

While it is likely obvious - and certainly not novel - to suggest that federalism plays a role in the Court's local government jurisprudence, this Comment contributes to the relevant scholarship by proposing a new framework that better explains federalism's actual role. The Comment notes that federalism plays dual roles, both (1) limiting the likelihood that the Court will find that a state's choices about structuring its local governments are constitutionally impermissible9 and (2) leading the Court to tailor its remedies as narrowly as possible in order to produce minimal disruption where it finds that a state has run afoul of particular constitutional prohibitions in structuring its local governments. Thus, federalism limits the extent to which the supremacy of federal law interferes with a state's choices about how to structure its local governments.

Finally - and most importantly - this Comment also considers the implications of its proposed framework. It explains that recognition of federalism's dual-faceted role is valuable for four reasons. First, this recognition will likely allow for modestly improved predictability of the outcome of future cases. Second, and of primary importance for purposes of this Comment, this recognition suggests that scholars who have identified a trend toward greater Supreme Court recognition of the independent importance of local governments have missed the mark10: any status afforded to local governments in the Court's jurisprudence is merely derivative of their status as creations of the sovereign states. Third, it indicates that because the Court has heretofore only implicitly suggested that it views the status of local governments as derivative, as opposed to being independent or nonexistent, the Court should improve the clarity of its relevant jurisprudence by explicitly articulating the role federalism plays in its local government decisions, thus clarifying the derivative status of local governments. …

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