Issue 1

Crackdowns

The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.

This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.

The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful—to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown—and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the executive’s power to selectively and programmatically augment enforcement.

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.

That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.

A Declaratory Theory of State Accountability

Scholars and jurists may never reach consensus as to the historical meaning of Article III and the Eleventh Amendment and the proper balance of immunity and accountability. Certainly we find little in revisionist accounts of that history that disproves the diversity theory. But even in a world where sovereign immunity prevails, perhaps all will agree that the federal courts have a legitimate role to play in evaluating claims that the states have violatedwillingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law.  supreme federal law in the context of actions for declaratory relief. Perhaps, too, all will agree that the states’ willingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law. 

Such a cooperative approach to the vindication of federal claims has a good deal to recommend it. By channeling federal claimants into state law processes, the declaratory approach would preserve state control of the treasury and obviate the concern that exorbitant federal awards might drain state coffers. At the same time, the declaratory approach maintains federal judicial engagement with questions of state compliance with federal law. Finally, the declaratory approach places some responsibility on the states for ensuring the effectiveness of remediation. With time, the states may establish the sort of routine mode of money claim payment that now characterizes practice at the federal level under the judgment fund. After all, supporters of state immunity offered assurances in the wake of Chisholm that the states could be trusted to do right by money claimants.327 As an acceptance of that offer, the Eleventh Amendment calls upon the states to entertain money claims in the wake of a federal declaratory judgment that the state has violated federal law. 

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