Issue 5

This Note seeks to examine the relationship between municipal receivership and local autonomy. Because few have explored this relationship in great detail, it is unclear whether municipal receivership is an appropriate tool for economically struggling cities. This Note argues that it is not. I begin by examining both the history of municipal receivership and local government law. This is necessary because local government law provides the framework for how to think about municipal receivership. I then analyze some of the legal arguments against municipal receivership. Based on specific home rule provisions in state constitutions, as well as a reading of the history of the home rule movement, I argue that home rule should provide cities with some protection against municipal receivership. Additionally, federal law may also be able to protect some cities from the loss of local voting rights that municipal receivership entails.

This Note then transitions into an evaluation of the extralegal arguments against municipal receivership. This reveals that municipal receivership is problematic because of the effect it has on democratic governance and the political incentives of local residents. Moreover, by defining success narrowly and misunderstanding how local financial crises arise, I argue that municipal receivership represents bad policy in that it fails to provide a long-term solution for the causes that generated the fiscal instability in the first place. This Note concludes with a review of some alternatives to municipal receivership, and discusses why they are superior.

When, if ever, should the executive decline to defend in court a federal law it has concluded to be unconstitutional, and yet still enforce that same statute? The question is presented by the Obama Administration’s decision to enforce, but not defend in court, Section 3 of the Defense of Marriage Act (“DOMA”). But the DOMA § 3 decision is not the first time the executive has bifurcated enforcement of a statute from its defense in court. The practice dates back at least to World War II. Yet the conditions of possibility and the consequences of “enforcement-litigation gaps” have never been specified, investigated, or evaluated. This Article fills that gap. Enforcement-litigation gaps are a form of departmentalism: constitutional practice by a political branch. Reflecting the strong priors many have toward executive branch departmentalism, enforcement-litigation gaps provoke both broad endorsement and strong repudiation. Contrary to conventional wisdom, this Article argues that a categorical response of either kind is unjustified. Enforcement-litigation gaps are neither always justified nor logically inconsistent with larger constitutional values. By clarifying the variables at stake when the executive separates enforcement from litigation, I develop a general framework for distinguishing desirable from undesirable uses of the practice. This framework suggests enforcement-litigation gaps are most justified when the executive defends an Article II value. They rest on weaker footing when the underlying constitutional question relates to the constitutional rights of third parties. The Obama Administration, on this account, acted unwisely in distinguishing the continued enforcement of DOMA § 3 from its defense in federal court—but not for the reasons generally believed.

Examining the Conflict Between Municipal Receivership and Local Autonomy

The Expectation Remedy Revisited

Enforcing (but not Defending) ‘Unconstitutional’ Laws