To Restore America's Place in the World, President Biden Should Commute Federal Death Sentences

As a professor of international human rights law, you might expect that I would spend most of my time teaching students about the deplorable ways other countries treat their citizens. America, after all, is supposed to be a beacon of democracy and justice to the rest of the world. But one of the most egregious human rights issues I teach about happens on U.S. soil: it’s the death penalty.

More than 70% of the world’s countries have abolished the death penalty. In retaining capital punishment, the United States is an outlier among its closest allies. Our “peers” among countries that routinely carry out executions are notorious human rights violators: China, Iran, Saudi Arabia, Iraq, Egypt, and North Korea. And America ceded further ground in its moral leadership as a result of the 13 federal executions carried out under President Trump and Attorney General Barr.

By retaining capital punishment – and particularly as a result of the recent federal executions – America’s diplomats and foreign service officials often confront skepticism, even disdain, when they seek to encourage our allies to improve their human rights records. The damage to our international relationships spills over into other areas of cooperation and diplomacy, weakening our bargaining position on a wealth of issues that affect U.S. interests abroad and at home.

In addition to the more generalized rejection of capital punishment, the international community is well-aware of the problems plaguing the federal death penalty. In early 2021, a group of United Nations experts called on the United States to end capital punishment. Many of our allies have similarly urged an end to the federal death penalty. These organizations and countries have pointed to the racial bias built into the federal death penalty system – producing a majority of federal death sentences against people of color. They also have criticized the federal government’s execution of people with severe mental illness and intellectual disability. I had the honor and heartbreak of representing one of those people, Lisa Montgomery, whom President Trump executed despite the overwhelming evidence of her severe mental illness and the horrific trauma she endured from her earliest childhood.

Since taking office, President Biden has been working hard to restore our country’s place in the world order. President Biden also is the first American president to express firm opposition to the death penalty and to state a desire to end it at the federal level. The time has come for him to put that important commitment into action by commuting all federal death sentences.

The President has widespread, bipartisan support at home for clearing federal death row. Doing so also would demonstrate leadership on an issue that many of our allies deem critically important. It would allow us to advocate for justice and human rights around the world from the moral high ground.

On this World Day Against the Death Penalty, I urge President Biden to exercise his constitutional authority to commute all federal death sentences. The world is watching.

Sandra Lynn Babcock is the faculty director of the Cornell Center on the Death Penalty Worldwide at Cornell Law School.

 

 

Hispanic Heritage Month Opportunity To Celebrate Diversity That Makes Profession, Communities Stronger

I was born and raised in the beautiful island and U.S. territory of Puerto Rico.  Back home, we are taught that our culture is an amalgamation of the Spanish, indigenous (taíno), and African cultures. However, when I moved to Florida to attend law school, I quickly learned that, outside of the Puerto Rican community, there was little understanding of the unique, intricate culture I grew up cherishing.  I am no stranger to discrimination, which is often paired with a lack of knowledge of history and the U.S. Constitution.  These personal experiences led me to volunteer early in my career with the Florida Supreme Court’s Justice Teaching program, through which I visited middle schools and high schools to enhance Civics lessons each school year.  When young students saw someone who looked like me, talked like me, and came from my island, they too could aspire to love the law and become lawyers or judges one day.

I have had the privilege to represent Fortune 500 companies through my entire career, and in the last five years, I have also been able to represent individuals in all matters involving employment and workplace accidents. For all of the mental and physical demands of a legal job, it seldom provides the satisfaction that volunteer work has given me.  I will always be proud of my work over many years with the Puerto Rican Bar Association of Florida, my contributions to the founding of the Legal Services Clinic of the Puerto Rican Community in Orlando after hurricane Maria, and the continuing efforts to bring light into the constitutionality of Puerto Rico’s political status.

After the grueling 2020 election cycle ended, I reflected on my roles as private sector lawyer, volunteer election observer, and Hispanic community activist. Like so many of my colleagues, I felt the need for change when I saw our democracy imperiled by steady blows to the rule of law and Constitutional precedents. This day and age invariably points us toward social media when we search for news, sources of hope, and opportunities. While browsing LinkedIn, the American Constitution Society popped up on my feed through a post by a law school connection, who also happens to work for ACS. I immediately recalled ACS’s mission and purpose, and thus, my search for other ways to make an impactful contribution considering all my former roles and experience was over.

Central Florida has been my home for the last decade and I am proud to be a co-chair of the ACS Central Florida Lawyer Chapter. Our community is one of the most diverse in the entire State of Florida and its resilience in the wake of adversity has been historic. Our chapter aims at creating change in small and steady steps, with the goal to be a significant source of progressive legal policies and a beacon to fair-minded judicial aspirants of all ages, genders, and backgrounds. ACS’ Path to the Bench Initiative provides a unique opportunity for minority lawyers like myself to identify and assist judicial candidates on their way to a career in the judiciary, especially those who show exceptional qualifications. Most importantly, judicial candidates and Path to the Bench workgroup members share the same objective of prioritizing diversity in the areas of gender, race, ethnicity, sexual orientation and legal practice fields.

Hispanic Heritage month is a special time to celebrate the qualities that make the legal profession more diverse and in turn make our communities stronger.  I look forward to continuing ACS’ work with the Central Florida Lawyer Chapter.

 

Election Day Registration Would Remove Voting Barriers

In many states, voting is a cumbersome two-step process. A person must first register and only then can they vote. This two-step process suppresses voter turnout and disproportionally affects students and persons of color. It is also unnecessary. The two-step process can be easily combined into one by the simple step of permitting Election Day Registration.

The idea is far from novel. Today, 20 states plus Washington DC allow some form of Election Day Registration. This includes red leaning states like Idaho, Utah, and Wyoming, and as well as blue states like Vermont, California, and Connecticut.

Election Day Registration has also shown itself to be a remarkable success story. The purpose of any electoral system should be to encourage people to participate, and states that have Election Day Registration have over 10% higher voter turnout than states without it. It is therefore time to pass legislation that would require all states to allow Election Day Registration. This will make things easier for voters and election officials alike.

Opponents of Election Day Registration raise a number of concerns, none of which have merit. First they argue that allowing voters to register and vote at the same time encourages “voter fraud.” They contend that Election Day Registration would allow people to show up and try to register and vote twice, or even more than twice. Never mind that there is no evidence of this actually occurring. Nor is it likely to occur. Voters who register on Election Day have to show proof of residency. This means their names and addresses would be clearly marked off as having voted, just like any pre-registered voter who votes on Election Day. And any attempt to register and vote twice would constitute a felony punishable by fines and jail time.

Opponents also claim that Election Day Registration causes a burden on election officials. But that assertion has been debunked by election officials in the 20 states that allow Election Day Registration who say the burden is minimal. In fact, election officials in states with Election Day Registration have found that it promotes efficiency because it decreases the need for provisional ballots and thus lessens the work for election officials because it eliminates the need for them to take additional steps to verify and count provisional votes.

Finally, opponents say that Election Day Registration encourages voters to be uninformed. But why this would be is not clear. There is no reason to assume that someone who pre-registers is any more knowledgeable than someone who does not. This is purely a make-weight argument designed to make voting harder, not to make voting more informed.

In fact, the history of state voter registration laws is rooted in efforts to limit voter participation. Voters were not generally expected to register themselves until the early 1800s. As voter registration laws began to surface more frequently, they became a tool to try to exclude certain groups of people from voting, from immigrants and working people in Northern cities to Black people living in the South. Onerous registration laws continue to be a contentious subject, with conservatives generally seeking more restrictive policies to discourage participation and progressives seeking ways to ease registration burdens to increase voter participation.

I’m from Ohio, where the deadline to register is 30 days before Election Day.  This is one of the most restrictive deadlines in the country and is the longest time period allowed under federal law. It’s no surprise then that Ohio’s voter turnout of our voting eligible population is the lowest of Midwestern battleground states. We actually have about 1.5 million Ohioans who are eligible to vote, but aren’t registered. Election Day Registration could really make a difference for so many voters here. Especially young voters and voters of color, who disproportionately make up that unregistered population.

Federal legislation is currently before Congress that would bring Election Day Registration to the remaining states who don’t have it. The Freedom to Vote Act would remedy the assault on voting rights taking place in so many states like Ohio, Georgia, Arizona, and Texas. Together with the John Lewis Voting Rights Advancement Act (which would restore and update the full protections of the landmark Voting Rights Act of 1965), the Freedom to Vote Act would be the most comprehensive democracy reform law enacted in decades.

We need to let people vote, and in order to do that, we must ensure that registration is not a barrier. This National Voter Registration Day, let’s work to bring Election Day Registration to Ohio and to all of our United States.

Kathleen Clyde served four terms in the Ohio General Assembly, representing the 75th House District in Northeast Ohio from 2011-2018. In 2018, she was the Democratic nominee for Ohio Secretary of State. A founding member of the ACS Columbus Lawyer Chapter and the OSU Student Chapter, Kathleen is currently a member of the Northeast Ohio Lawyer Chapter and serves as Co-Chair of the Ohio Citizens Redistricting Commission.

The Texas Abortion Law and Shelley V. Kraemer

In Whole Women’s Health v. Jackson, the U.S. Supreme Court recently refused to block enforcement of a new Texas law that effectively bans most abortions, without exceptions even for rape or incest.. The Court’s action led some observers to ask, What about the Supreme Court’s 1948 decision in Shelley v. Kraemer?

In Whole Women’s Health, a five-member majority of the Court declined to grant a stay or to temporarily enjoin enforcement of the new law which, in the words of Chief Justice Roberts’s dissent, “impose[s] a prohibition on abortions after roughly six weeks, and then essentially delegate[s] enforcement of that prohibition to the populace at large.” The unsigned majority opinion states that, while the plaintiffs challenging the law had raised “serious questions” regarding its constitutionality, their application for emergency relief presented “complex and novel antecedent procedural questions” that precluded the relief they requested.

The majority in Whole Women’s Health allowed the law to go into effect because it was unclear to them whether the state officials named as defendants in the lawsuits could or would enforce the law, and it was also unclear whether the U.S. Supreme Court could issue an injunction against state judges asked to decide a lawsuit brought under the law. Moreover, the majority noted that the sole private-citizen defendant before the Court had filed an affidavit stating that he “has no present intention to enforce the law.” As Justice Sotomayor stated in dissent, the majority’s decision allowing the Texas law to go into effect resulted in prohibiting care for at least 85 percent of Texas abortion patients, caused many abortion providers to shut down, and exposed any that remain in operation to costly damages and attorneys’ fees in enforcement lawsuits brought by private-citizen bounty hunters.

As the dissenters in Whole Women’s Health point out, the Texas law is “clearly unconstitutional under existing precedents.” The Court held in 1973 in Roe v. Wade, and reaffirmed in 1992 in Planned Parenthood of Southeastern Pa. v. Casey, that a woman’s right to choose to have an abortion before fetal viability is a liberty protected by the Due Process Clause of the Fourteenth Amendment. Justice Sotomayor explained that, through “procedural entanglements of the State’s own creation,” the majority has now allowed Texas to “evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.” Chief Justice Roberts agreed that “[t]he desired consequence [of the law’s statutory scheme] appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

Inexplicably, neither the majority opinion nor the dissents in Whole Women’s Health contain any citation or discussion of the Court’s decision in Shelley. The Shelley case involved two lawsuits, one from Missouri and the other from Michigan, in which white homeowners sought state judicial enforcement of covenants that restricted the ownership or occupancy of real property to whites only. The courts of those states had held that the restrictive covenants must be enforced under state law. The U.S. Supreme Court reversed, holding that, “in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners [Black home buyers] the equal protection of the laws [in violation of the Fourteenth Amendment], and that, therefore, the action of the state courts cannot stand.” (Emphasis added.) As the Court recognized even in 1948, it had “long been established by decisions of this Court” that “the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment ….”

The Shelley opinion cited, among several other decisions, the Civil Rights Cases, in which in 1883 “this Court pointed out that the [Fourteenth] Amendment makes void ‘State action of every kind’ which is inconsistent with the guaranties therein contained, and extends to manifestations of ‘State authority in the shape of laws, customs, or judicial or executive proceedings.’" The Court in Shelley fully recognized and endorsed the broad understanding of “state action” reflected in the Civil Rights Cases. Indeed, the Shelley opinion quoted many of the phrases used by the Court in the Civil Rights Cases to express this understanding, including "the operation of State laws, and the action of State officers executive or judicial"; "State laws and State proceedings"; "State law . . . or some State action through its officers or agents"; "State laws and acts done under State authority"; "State laws, or State action of some kind"; "such laws as the States may adopt or enforce"; "such acts and proceedings as the States may commit or take"; "State legislation or action"; and "State law or State authority."

Shelley thus stands for the proposition that the state itself violates the Constitution when it adopts or enforces an unconstitutional law: “The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.” The Court in Shelley recognized – like Courts stretching back into the Nineteenth Century – that the Fourteenth Amendment can be violated by “State action of every kind,” including “State authority in the shape of laws,” “the operation of State laws,” “State laws and acts done under State authority,” and “State legislation or action.” This leaves no room for a state to evade federal judicial scrutiny by authorizing private citizens to enforce unconstitutional laws.

Just as the Court in Shelley held that the restrictive covenant laws of Missouri and Michigan deprived Black home buyers of their rights under the Fourteenth Amendment, the Texas abortion law now deprives women of their rights under the Fourteenth Amendment. When the Texas courts apply the state’s unconstitutional abortion law in litigation brought by private-citizen bounty hunters, Shelley demands that “the action of the state courts cannot stand.” And, under the reasoning of Shelley and the Civil Rights Cases, the unconstitutional law itself – even before the courts take any action to enforce it – is a sufficient “manifestation of State authority” to violate the Amendment.

The Department of Justice endorsed this view of Shelley in the suit it recently filed against Texas seeking declaratory and injunctive relief on the grounds that the Texas law is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity. The Department’s complaint cites and quotes Shelley for the proposition that “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms." The complaint goes on to note that, “[u]nder the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution,” and that private individuals may be found to be state actors when they “exercise ‘powers traditionally exclusively reserved to the State’” or when they are “significantly involved in conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their conduct.” The Department also cited Shelley in support of its subsequent emergency motion for a temporary restraining order or preliminary injunction blocking enforcement of the Texas law.

The analysis above hinges, of course, on the view that women still have the Fourteenth Amendment rights recognized in Roe and Casey. Even in the 1992 Casey ruling, however, four members of the Court – Rehnquist, White, Scalia, and Thomas – were prepared to hold that no such rights exist. A majority of the Justices on the current Court may ultimately agree that its prior decisions should be overruled, and that women should no longer have the rights that are being denied by the new Texas law. The Court may address the continuing vitality of Roe and Casey when and if the new Department of Justice lawsuit reaches it, and will have yet another opportunity to reconsider those decisions during the coming Term when it reviews the Fifth Circuit’s decision in Jackson Women’s Health Organization v. Dobbs.

As things stand now, however, Roe and Casey are still good law. It is difficult to see how the Court can continue to ignore Shelley and thereby avoid the conclusion that the Texas law violates the Fourteenth Amendment. The Court will have other opportunities to reach the correct conclusion, either in the pending case filed by the Department of Justice or in future lawsuits brought by private-citizen bounty hunters.

Patrick O. Patterson is a civil rights lawyer who served as Senior Counsel to the Chair of the Equal Employment Opportunity Commission from 2010 to 2014, and as Deputy Director of the Department of Labor's Office of Federal Contract Compliance Programs from 2014 to 2017. He previously taught employment discrimination law, among other subjects, at the University of Wisconsin and UCLA Law Schools, and served as Assistant Counsel (New York) and Western Regional Counsel (Los Angeles) for the NAACP Legal Defense and Educational Fund, Inc. 

Invasive and Ineffective: DHS Surveillance Since 9/11

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11.

In the aftermath of the September 11 attacks, President George W. Bush and Congress created the Department of Homeland Security (DHS), consolidating twenty-two different agencies and their functions under one umbrella. Much has been written since the Department’s creation about its dysfunction and systemic challenges. But DHS’s sweeping collection, retention, and use of data about Americans, immigrants, and travelers has received far less scrutiny. Much of this information – which can reveal everything from a person’s political and religious leanings to the identity of their friends, relatives, and associations and their fingerprints or facial signatures – is not related to “specific…threat(s) from…specific terrorist(s),” which was identified as a significant intended focus of DHS in President Bush’s proposal to create the Department. Instead, it is often used to make opaque and unscientific determinations about who might pose a threat in the future.

There is scant evidence that the combination of suspicionless surveillance and speculative threat assessments have made us safer. Moreover, former DHS officials have emphasized the impact of DHS’s operations on Americans’ civil rights and civil liberties, noting that the “privacy and due process concerns resulting from other homeland security operations, such as information collection by the National Security Agency, pale by comparison.” As the administration turns its focus toward domestic terrorism in the wake of the January 6 insurrection, and far-right violence in particular, it must take care in deploying DHS’s significant resources not to simply recycle practices that jeopardize historically targeted communities and individual privacy.

Beginning a decade ago, for instance, the Obama administration began to entrench Countering Violent Extremism (CVE) initiatives. Programs in this mold recruited community leaders, social workers, teachers, and public health providers, purportedly to help identify people who were at risk of becoming violent extremists. Instead, these efforts broadly painted members of American Arab and Muslim communities as terrorists and everyday political activism and religious practices as signs of violence. While President Biden promised during the election that he would scrap such programs, his administration has instead doubled down on this same basic approach, funding efforts that direct the public to report supposedly suspicious activity or behaviors – including vaguely defined indicators such as having a grievance, being socially isolated, or behaving unusually – to the police or to “threat assessment” teams involving law enforcement. These programs, which are run out of DHS’s new Center for Prevention Programs and Partnerships (CP3), are essentially a repackaging of the repudiated CVE programs that relied on unscientific criteria to flag potential threats, even if they do not overtly target marginalized communities.

In addition, some reports of suspicious activity will be disseminated to “fusion centers,” products of the post-9/11 push to supercharge information-sharing and surveillance coordination between federal, state, and local governments and the private sector. These centers were roundly criticized in a bipartisan 2012 U.S. Senate investigation that found they had “yielded little, if any, benefit to federal counterterrorism intelligence efforts” while releasing reports that were useless or corrosive of civil liberties. More recent events do not inspire confidence that much has changed: last year, one fusion center was caught distributing fake posts by right-wing activists as evidence of potential violence at anti-police brutality demonstrations, while others were found to have monitored racial justice organizers and protests. Nevertheless, DHS and DOJ guidelines encourage fusion centers to assess terrorism risk by drawing on a plethora of extraneous sources, from social service providers and public health departments to hospitals and phone and internet providers.

Between the threat assessment framework and the involvement of fusion centers, issues unrelated to public safety threats – a fight between classmates, for instance, or a mental health condition requiring care – will be elevated to often unaccountable law enforcement bodies, thereby undermining efforts by social service and health providers to get people the help they may need. Moreover, these unreliable threat indicators are likely to be tainted by well-documented racial and religious biases that disproportionately identify Muslims and individuals of color as posing a threat.

In the travel and immigration screening context, too, the Department fuses reams of disparate and unreliable information to conduct risk assessments, an opaque process that purports to determine who might pose a threat among both foreign travelers and Americans. To facilitate this process, DHS uses automated tools that pull from a broad list of datasets, including detailed passenger information submitted by airlines, license plate data, DMV records, law enforcement and intelligence information, visa and immigration enforcement records, and social media data. Some tools incorporate data sets tainted with bias, such as NSEERS, a defunct Bush-era registry for Arab men. In the past, border agents have even added notes on books carried by travelers, documenting First Amendment-protected activity.

Exposés of Transportation Security Administration (TSA) risk assessment programs depict a department run amok. In one program, Screening of Passengers by Observation Techniques (SPOT), later rebranded as the “Behavioral Detection and Analysis Program,” officials flagged travelers as potential security threats on the basis of innocuous behavior such as whether they were wearing “improper attire for the location” or gazing down. TSA officers administering the program reported that it enabled racial profiling, and the program was the subject of multiple critical GAO and DHS Inspector General  reports, which found that the majority of TSA’s indicators were not empirically supported and the agency had not determined the effectiveness of the program. Though TSA has stopped this stand-alone behavioral detection effort, it appears that aspects of the program have been incorporated into general TSA activities.

Another TSA risk assessment program, “Quiet Skies,” identifies incoming international passengers (including Americans) based on routine behaviors like fidgeting, sweating, using the bathroom, or conversing with fellow passengers; once flagged, armed federal air marshals may board their flights to observe them. TSA officials disclosed to Congress that 5,000 US citizens – none of whom were ultimately deemed suspicious or requiring further scrutiny – had been monitored in a single six-month period, and the DHS Inspector General issued a scathing audit that documented DHS’s extensive failures to follow basic processes.

Social media is also an emerging frontier of broad-scale surveillance both abroad and domestically. The Obama administration started using social media to screen people coming to the U.S., a practice significantly expanded by former President Trump’s Muslim Ban. Since 2019, for instance, the State Department has collected social media identifiers from about 15 million people who apply for U.S. visas annually. These are shared with DHS and accessible through its risk assessment platforms, and the Department continuously monitors select visa holders’ social media during their time in the country. Domestically, DHS’s Office of Intelligence & Analysis (I&A) is responding to the January 6 insurrection by rolling out an initiative to identify online “narratives” that they believe are likely to incite violence, as well as to identify people who may be susceptible to these narratives based on their social media behavior.

There is little proof, however, that social media screening is an effective threat detection tool. DHS’s own internal tests examining the utility of social media to screen people coming to the U.S. suggest that officials found it of little use in identifying national security concerns, and that it was difficult to understand the context or to ascertain the reliability of what they were reviewing. The Department ultimately concluded that “mass social media screening” was a waste of resources. In addition, earlier this year, the White House office that reviews federal regulations rejected a proposal by DHS to follow the State Department’s lead in collecting social media identifiers because the Department had not “adequately demonstrated the practical utility of collecting this information.” And I&A’s intelligence gathering and dissemination process has had a poor track record of protecting civil rights and liberties, raising concerns about its foray into social media monitoring.

Moving forward, policymakers should learn from the experiences of the last twenty years. None of the DHS-led programs described above have a documented track record of providing security benefits. Yet their ill-conceived methods persist, and continue to be expanded, in current policy. Indeed, the effectiveness and potential impact of these programs was never meaningfully considered – or, in some cases, was even ignored as the programs were rolled out. Before implementing new initiatives, DHS must empirically validate their utility using concrete assessment criteria and account for impacts on privacy, civil rights, and civil liberties. To ensure this happens, DHS should bring its Offices of Privacy and Civil Rights and Civil Liberties into the fold at the outset of the policy design process, give them a voice in whether programs should be implemented and not simply how, and direct them to regularly audit programs that go into effect. DHS should also halt support for efforts that have not been demonstrated to work, including the violence prevention programs, fusion centers, and broad-scale social media surveillance initiatives discussed above.

Commentators will continue to discuss whether DHS should be restructured or eliminated. In the meantime, there are ample steps that the Secretary and Congress should take to ensure that the Department enters this decade by taking a new approach: measuring effectiveness, engaging only in empirically proven methods, and dedicating itself to robust protection of civil rights and civil liberties.

Can States Block Federal-Local Cooperation?

The long-fought conservative war on progressive cities, which has taken on deadly new dimensions as the pandemic continues, may be moving into an intriguing - and for localities, potentially promising - new legal phase. As states seek to block local governments from implementing common-sense mask and COVID-19 vaccination rules to protect public health, the federal government has started to intervene on the local-government side of these conflicts.

The American Rescue Plan provides state and local funding to offset the costs of responding to the COVID-19 pandemic. The Department of Treasury emphasized in an interim final rule that these funds should be used to support the prevention and mitigation of the COVID-19 pandemic in key settings like schools. And the Centers for Disease Control and Prevention has issued guidance recommending universal masking for all students over the age of 2, as well as teachers, staff, and visitors in K-12 schools.

Despite this Treasury and CDC guidance, some states are blocking local governments from implementing the exact programs the federal government recommends and is funding - and threatening to withhold funding if cities and counties refuse to comply with state orders. In Arizona, for example, Governor Doug Ducey is limiting the distribution of federal ARP funds to local school districts that do not adopt mask mandates, preventing school districts following federal guidance from receiving federal funds. In Florida, despite multiple rulings to the contrary, the state has decided to withhold funds from two school districts for imposing masking mandates. Florida Commissioner of Education Richard Corcoran said last week that the department has withheld funds from Alachua and Broward counties in amounts equal to the monthly salaries of school board members because “each district has implemented a mandatory face mask policy that violates parental rights by not allowing a parent or legal guardian to opt-out their child.” Local governments in these and other conservative-led states want to comply with federal guidance, but states are standing as obstacles to federal-local cooperation against the pandemic.

Now, the Biden Administration has signaled an active willingness to block this state interference. On August 18th, President Biden issued a memorandum to the Secretary of Education to ensure that “[g]overnors and other officials . . . are not standing in the way of local leaders” preparing for students’ safe return to the classroom. Following that memorandum, the federal Department of Education put six states - Arizona, Florida, Iowa, Oklahoma, South Carolina, Tennessee, Texas, and Utah - on notice that actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of Covid-19 may run afoul of federal law.

The federal government has taken further steps to support cities as states signal that they will continue to target cities following federal recommendations for student safety. President Biden has indicated that the federal government would direct federal funding to compensate school districts that the state of Florida is seeking to remove funding from. The Department of Education has opened civil rights investigations in Iowa, Oklahoma, South Carolina, Tennessee, and Utah to determine whether prohibiting mask requirements impedes access for students with disabilities in violation of federal law. Federal investigations have not been initiated yet in Arizona, Texas, or Florida because of pending state litigation.

This is not the first time the question of federal funding and state interference with local governance has come to a head. In Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256 (1985), the Supreme Court held that the state of South Dakota could not compel a county to allocate federal funds according to a state-mandated funding formula, when the state disagreed with how the county wanted to prioritize local spending. There, the federal government had set aside funds for local governments to spend for “any governmental purpose,” and the state’s imposition of additional spending conditions presented an obstacle to the federal government’s aim of supporting local discretion. Here too, states seek to prevent voluntary collaboration between the federal government and local governments.

This is not to say that the federal government can mandate local collaboration. The Trump Administration was properly held to have violated the Tenth Amendment when it tried to commandeer local governments into involuntarily acting as an arm of federal immigration enforcement. But here, states are seeking to undermine willing federal-local collaboration, and by extension local autonomy, to engage in policymaking that furthers public health and individual rights, such as the federal educational rights of students. Local communities, school districts, and their students stand to suffer as a result.

Federal-local cooperation to overcome state opposition has the potential to further equity and bolster individual rights in a variety of other policy areas. The federal government can support local governments that seek to use their autonomy and discretion to pass higher minimum wage, expand ballot access, increase environmental protection, and redirect law enforcement dollars toward human services, to name a few examples. The federal government does not intervene in state-local relations lightly, nor should it, but when the imperatives of federal law are implicated in local policymaking, the abuse of state preemption should not stand as a barrier.

Nestor M. Davidson is the Albert A. Walsh Chair in Real Estate, Land Use, and Property Law and the Faculty Director of the Urban Law Center at Fordham University School of Law. Marissa Roy is the Legal Team Lead of Local Solutions Support Center.