Bridget Fahey on Landor v. LDOC

a guest post on the law of intergovernmental agreements

[This post is by Bridget Fahey, Professor of Law at the University of Chicago.]

The Supreme Court’s opinion this week in Landor v. Louisiana Department of Corrections and Public Safety is about many things: religious liberty, statutory interpretation, and remedies. But it’s also about the legal framework that powers contemporary federalism—the contract-like instruments the federal government and states use to structure their joint programs. We can think of those agreements as something like treaties for domestic intergovernmental affairs. Landor speaks to a thorny nuance of that intergovernmental contracting relationship, one with broader implications for our current federalism moment that I think are important and, perhaps, unexpected.

Landor is about the Religious Land Use and Institutionalized Persons Act, which protects certain religious liberties for people in state and local custody, but which the Supreme Court has held Congress lacks the constitutional authority to protect unilaterally. States, of course, have ample authority to safeguard those religious liberties, so Congress pursued their protection through a joint federal-state program, offering states financial inducements in exchange for their commitment to comply with the rights described in the Act.

Straightforward so far. But once the federal government and states create joint programs, the status of the resulting law can get murky. One complication is that the federal statute is not the governing legal document. Remember: constitutionally, the federal law cannot be operative on its own steam. It only takes effect once a state agrees to voluntarily adopt and enforce its requirements. For that reason, I have argued that federal-state agreements themselves are the documents that have the force and effect of law in federal-state programs. Those agreements, in turn, should be regarded as a distinctive form of domestic law, just as treaties are a distinctive form of international law.

Once we understand the federal-state agreement as the operative law of the program, we can appreciate the need for nuanced rules of interpretation. Most importantly, as the Supreme Court said over forty years ago, those agreements should be interpreted like the contracts that they resemble—as projects of two governments, not one. And we have to ensure—as contract law does—that the power of the pen cannot be used to deceive a counterparty into assuming legal liability against its wishes.

That brings us to Landor. This much is relatively clear: the state of Louisiana had agreed to participate in the RLUIPA program, and officers in one of Louisiana’s prisons had likely violated RLUIPA’s requirements by compulsorily shaving Mr. Landor’s hair contrary to his religious beliefs. Landor sued both the state itself (in the form of the state’s prison authority) and the offending officers in their individual capacities. Everyone agrees Landor could seek at least declaratory or injunctive relief against the state. But the federal statute and federal-state agreement do not expressly permit Landor to sue the prison officials, in their individual capacity, for damages.

Landor argued, among other things, that because the officials are agents of the state, they can be held responsible for the states’ promises to the federal government. That is an intuitive idea, but it is complicated by the program’s constitutional footing as a joint federal-state initiative structured by an intergovernmental agreement. Most importantly, the parties to the agreement are the states and federal government in their corporate capacities. State officials are, to be sure, implicated by the agreement: they must conform their behavior to the standards the state promised, or else the state will be in breach, and liable. The question is whose job it is to supervise those state officials when the agreement does not speak to that question directly.

The Court held this week that because the state is the party in interest, it is the state’s job to ensure that its officials comply with the agreement, unless the agreement unambiguously provides otherwise. If the state fails to supervise its employees, it is in breach and vulnerable to the remedies provided by the agreement. If the federal government wants state employees to be subject to damages suits by third parties, it has to bargain with the states to either include that requirement in the intergovernmental agreement or to impose that requirement as a matter of state law.

All that is faithful to ordinary contract law, and ordinary contract law is (as the Court has consistently explained) a useful lens through which to understand intergovernmental agreements. But there is another important reason not to lightly assume that a state, in entering into an intergovernmental agreement, has surrendered its own right to supervise its officers to either a third party or the federal government.

State officers and employees—their time, effort, discretion, knowledge, and judgment—are central aspects of state governance, and among the core forms of state capacity protected against federal commandeering, as Printz v. United States squarely recognized. The states’ constitutional interest in supervising their employees, especially in the foggy legal spaces in which the federal government and the states interact and collaborate, gives Landor a kind of sleeper significance for ongoing federalism disputes.

In recent years, a variation on Landor has become a recurrent feature of intergovernmental relations. In Landor, the claim was that third parties could enforce a state’s promise to the federal government by seeking liability against state officers in their personal capacities. But the federal government also seeks to hold states to their obligations not just through enforcement actions against the state itself, but also by seeking liability against state officers in their personal capacities—with no more authorization than was present in Landor.

In an article published earlier this month about a set of practices I call the “new commandeering”—practices designed to draw state capacity into federal projects without constitutionally adequate state consent—I argued that the federal government has devised a range of inventive strategies to pressure, cajole, threaten, and reward state officers to support federal objectives over the state’s objection or without the state’s permission.

Consider an unexpected example, seemingly far from Landor: the very strange federal prosecution of Massachusetts state-judge Shelley Joseph. Judge Joseph was criminally charged with obstructing an ICE proceeding after she allowed a defendant in her state courtroom to exit through a back door instead of into a public waiting area where ICE was waiting to detain him. Massachusetts at the time had a policy allowing ICE enforcement in state courthouses under some circumstances, but the policy nowhere permitted the federal government to enforce that policy, much less to do so by prosecuting state judges.

Because (in my view) the federal government was present in state courthouses by grace of the state, and because the state enjoys the right to supervise how its judges manage their courtrooms unless it has unambiguously bargained that right away in a deal with the federal government, Judge Joseph’s criminal prosecution should be understood as analogous to the effort rejected in Landor—an effort to police the state’s commitment to the federal government by threatening implied liability against a state officer directly.

State promises to the federal government are often ambiguous, and it is common for the states and federal government to have reasonable disputes about their scope. Those disputes, Landor emphasizes, should be worked out between the parties-in-interest to the agreements: the states and the federal government. In threatening state officers with personal liability if they do not comply with the federal government’s understanding of the state’s commitment, the federal government bypasses the state and claims the power to guide the state’s officers itself. Doing so imposes the risk of legal ambiguity about a state’s legal position on individual officers—who have both less incentive to strongly assert the state’s interest and fewer resources to do it well.

Returning to the contracting analogy, imagine a contracting party asserting an inherent right to supervise how its counterparty’s employees meet (or fail to meet) the contractual objectives, and all the relational power such a right would entail. The Landor Court was right to embrace the idea that the party to the contract has the responsibility of supervising its own employees—not third parties, and not the counterparty, unless bargained for in the agreement itself.