State Bureaucratic Undermining

Abstract

Our federal rights are failing, and the inner workings of state government provide an explanation. States administer more federal rights than ever before; administering those rights requires intrastate coordination both horizontally—across cabinet-level state actors, agencies, and commissions—and vertically—with local governments like counties and towns. That coordination undermines federal law by creating bureaucratic barriers to full compliance. I unearth and identify three of these barriers—agency alienation, agency conflict, and role confusion—by surveying remedies in recent suits against state actors. These remedies take the form of choreography: they specify how internal state actors must work together to vindicate federal rights.

I find that coordinating state bureaucracy requires the political will of several state actors, so federal rights that require intrastate coordination will not always reach politically marginalized groups like racial minorities and low-income populations. Because recent federalism scholarship has focused on lawful cooperation and conflict between states and the federal government, it has missed the ways that state coordination-based noncompliance can reinforce the very racial and income inequality that federal rights seek to address. State bureaucracy undermines federal rights in unexpected locations that do not follow traditional patterns of partisanship or geography. Remedying state noncompliance of this kind requires state and federal authorities to create coordination pathways through state bureaucracy responsive to the state’s coordination challenges.

Keywords: Federalism, Civil Rights, Administrative Law, States, State Administrative Law, Constitutional Law, Election Law, Sixth Amendment