The federalism challenges of impact litigation by state and local government actors.

• Author: McCusker, Claire

In the October Term 200l, the Ohio Attorney General's Office filed thirty-six briefs in the U.S. Supreme Court, (1) thereby participating in more than a third of that Term's cases. Of those, thirty-four were amicus briefs. (2) While striking, this high level of involvement by a state attorney general's office in constitutional litigation to which the state is not a party is no longer an aberration. Rather, it is part of a growing trend among state and local government actors of taking a more active role in constitutional and Supreme Court litigation. (3) This Comment examines the important implications for federalism of the increased prominence of these government attorneys in constitutional litigation. More specifically, it illustrates a tension between the adoption of an affirmative litigation model by state and local government actors and the democracy-enhancing values fostered by federalism. The Comment concludes by proposing some possible corrective measures.

The argument proceeds in four Parts. Part I examines the recent rise to prominence of a set of state and local government litigators--namely, state attorneys general, state solicitors general, and city attorneys. Part II establishes a federalism framework through which to evaluate the trend identified in Part I, grouping the values advanced by federalism loosely into the diversity theory and the self-governance theory. Under the diversity theory, the existence of different state practices has two distinct virtues: it both fosters "state laboratories" for the testing of innovative policy proposals and allows for the tailoring of policies to citizens' varying tastes and situations. Under the self-governance theory, the importance of state and local government is preserved in order to encourage democratic participation in governance by the citizenry.

Part III demonstrates the tension between some forms of affirmative litigation undertaken by state and local attorneys and the values promoted by federalism under these two theories. This examination will proceed through two case studies. The first discusses the amicus brief filed by the Attorney General of Texas, joined by twenty-nine other state attorneys general, in District of Columbia v. Heller, (4) the case reviewing the District of Columbia's handgun ban. The second reviews the California Attorney General and San Francisco City Attorney's recently filed suit to invalidate Proposition 8, (5) the ballot initiative that amended the state constitution of California to prohibit gay and lesbian marriage. Each of these examples involves state action that this Comment will argue conflicts with the purposes of federalism outlined in Part II: Texas's amicus brief in Heller represents a use of state power to impose uniformity on state laws that is in tension with the diversity theory, while the San Francisco City Attorney's suit to invalidate a state ballot initiative is at odds with the justifications for federalism put forth by the self-governance theory.

Part IV briefly proposes some potential reforms. Rather than patterning their offices after public interest law firms, this Comment proposes that state actors embrace the model of federal prosecutors in order to avoid partisan capture. First, they should establish a cadre of career appellate lawyers likely to span several administrations. Second, they should impose upon themselves--or state legislators should impose upon them--the discipline of primarily accepting cases through agency referral.

1. THE INCREASED PROMINENCE OF STATE AND LOCAL ACTORS IN FEDERAL CONSTITUTIONAL LITIGATION

   Three classes of state and local government attorneys have assumed a newly prominent role in affirmative constitutional litigation in recent years. First, since the mid-1970s, state attorneys general have filed increasing numbers of amicus briefs in the U.S. Supreme Court under the aegis of the National Association of Attorneys General. (6) Second, in the past ten years, a dozen states have established the office of state solicitor general, (7) the occupant of which is charged with state appeals in front of the Supreme Court and with other critical appeals. (8) Finally, a new generation of city attorneys, exemplified by the San Francisco Office of the City Attorney, has become increasingly involved in constitutional and Supreme Court litigation. (9)

   Indeed, in recent years, states have appeared as amici in "more than a third of the cases that the Supreme Court considers on the merits." (10) Concomitantly, each of these institutions has begun to recruit top appellate legal talent in increasing numbers, (11) with many seeing it as "a new road to professional advancement--and face time at the U.S. Supreme Court." (12)

   This newly prominent role for state actors did not arise spontaneously. In the case of state attorneys general, for example, this increased interest in constitutional and Supreme Court litigation resulted from a concerted effort on the part of Chief Justice Warren Burger to increase the prowess of state lawyering before the Court in the wake of a series of state defeats in federalism cases to which he had dissented. (13) The position of state solicitor general, in turn, has been created by attorneys general to "improve the quality of advocacy" at the appellate level and to "promote the orderly development of law." (14)

2. TWO THEORIES OF FEDERALISM

   Under most theories of federalism, the existence of strong state actors is a prerequisite to the health of the federal system. (15) This Comment argues, however, that state actors can undermine the "distinction between what is truly national and what is truly local" (16) as surely as can federal actors, with serious repercussions for the values promoted by the federal system.

   There are many justifications for federalism. (17) The most common can be grouped loosely into what this Comment will call the diversity theory and the self-governance theory. As Part III explains, the current model of litigation undertaken by state and local governmental actors has the potential to come into conflict with federalism norms under both theories.

   Under the diversity theory, federalism's central benefit is in allowing a thousand flowers to bloom. In areas where there is no unified federal policy or legislation, states in a federal system are free to legislate and make policy independently. This state freedom has the virtue of allowing creative policy proposals to be tested. In Justice Brandeis's words, "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (18) Further, state freedom allows policies to be tailored to the individual preferences and situations of citizens in different locales. "[L]ocal laws can be adapted to local conditions and local tastes, while a national government must take a uniform--and hence less desirable-approach." (19)

   Under the self-governance theory, federalism is lauded for encouraging democratic participation in governance through the existence and growth of strong state political institutions. This view is best expressed by Justice O'Connor in her concurring opinion in FERC v. Mississippi: "In addition to promoting experimentation, federalism enhances the opportunity of all citizens to participate in representative government .... If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems." (20) Endorsing this view, Akhil Amar describes state and local government as "offer[ing] citizens clinical seminars in democratic self-government." (21) On this account, federalism's virtue is in allowing greater citizen participation than would a single centralized government.

3. IN TENSION WITH THE AIMS OF FEDERALISM: TWO CASE STUDIES

   As the following case studies demonstrate, aggressive affirmative litigation undertaken by state and local governmental actors has the potential to come into conflict with the justifications of both the diversity theory and the...