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Lemos on State Enforcement of Federal Law

By Lawrence Solum

Margaret H. Lemos (Benjamin N. Cardozo School of Law) has posted State Enforcement of Federal Law (New York University Law Review, Vol. 86, 2011) on SSRN. Here is the abstract:

Federal law is enforced through a combination of public and private efforts. Virtually all federal civil statutes vest enforcement authority in a federal agency; some also create private rights of action that permit private parties to sue to enforce federal law. Decades of commentary on the choice between public and private enforcement have generated a remarkably stable set of arguments about the strengths and weaknesses of each type. But the conventional wisdom tells only part of the story, as it ignores variations within the category of public enforcement. In fact, there are two distinct types of public enforcement. Many federal statutes authorize civil enforcement by both a federal agency and the states, typically through their attorneys general. State enforcement is largely decentralized, and states act on behalf of a set of interests that diverge significantly from those represented by federal enforcers. State enforcement also empowers a different set of agents - elected, generalist attorneys general - whose incentives and capabilities distinguish them from the appointed policy specialists who populate federal enforcement agencies. The result is a brand of public enforcement that differs markedly from the more familiar federal model.

This Article exposes state enforcement of federal law as both a unique model of enforcement and a unique form of state power. Enforcement has been neglected in the federalism literature to date, which equates state power with state regulation. As I show, however, enforcement authority can serve as a potent means of state influence, enabling states to adjust the intensity of enforcement and to press their own interpretations of federal law. Importantly, enforcement authority does not depend on regulatory authority. The two typically go hand in hand: a government creates laws and then enforces them. But state enforcement of federal law breaks that link by authorizing state actors to enforce the laws of a different sovereign. Thus, state enforcement authority can thrive even in areas where state law is preempted or state regulators have chosen not to act. Enforcement also empowers a different breed of state representatives. Just as state attorneys general differ from federal agencies as agents of enforcement, they differ from state agencies as agents of federal-state interaction. Moreover, attorneys general in most states are independent from the state legislature and governor, and may represent different constituencies. Enforcement authority therefore opens up new outlets for state-centered policy, empowering actors whose interests and incentives distinguish them from the state institutions that dominate other channels of federal-state dialogue.

Full post as published by Legal Theory Blog on October 05, 2010 (boomark / email).