Bridget: Thanks for writing this. There's something about it that I just don't understand, however.
You write that "the federal statute is not the governing legal document." Why not? It's not one or the other. I agree that if the state and the feds actually sign an agreement, that agreement "should be regarded as a distinctive form of domestic law, just as treaties are a distinctive form of international law." And I agree that RLUIPA "only takes effect once a state agrees to voluntarily adopt and enforce its requirements." So far, so good. But in that case, aren't there two "governing legal documents"--the agreement and the statute?
Say, for instance, that the federal government enters into many contracts with private parties to perform services (which it does!). It then also enacts a statute providing that no one--whether an employee of a contractor or otherwise--may interfere with the operation of a federal contract, and is subject to civil damages and possible criminal sanctions if it does. That statute is obviously permissible N&P legislation, and it applies *in addition* to the terms of the contracts themselves, even if those contract terms don't include a similar term that regulates employees/outsiders.
If that's right, why is Congress precluded from imposing a prohibition on third parties to prevent them from undermining the operations of the federal/state contract--which is what it did in RLUIPA?
(Sabri and Salinas establish this, btw--and Gorsuch's effort to distinguish them is obviously inadequate.)
Interesting post! But there are few things that still get me stuck in the analysis.
First, what is this "intergovernmental agreement" in the case of Landor and RLUIPA? Is it just RLUIPA itself? If that's the case it seems like a very strange contract. One side drafted the contract and said "take it or leave it". There doesn't seem to be any negotiation aspect to the agreement. This is part of what makes me strain when trying to understand. If congress wants to negotiate with the states then it has to either do this in the run up to passing the law--where negotiating with 50 independent parties would seemingly take a long time and produce contradictions--or re-pass a new law every time a state doesn't like something. This seems like an *impossible* congressional time challenge on any 2 year period of congress. It seems like SCOTUS has always been wary of a strict contractual analogy whenever this comes up (e.g., King v Burwell and even Bostock rejected a strict contract analogy).
Secondly, I largely agree with your anti-commandeering arguments when it comes to your example in Massachusetts, but doesn't the party trying to enforce the law matter, i.e. private 3rd parties vs the executive branch? The executive branch might be more susceptible to political whims which is why I would think congress would give the harmed parties standing to sue as they did in RLUIPA. Why isn't this distinction enough?
In my view Landor and the Judge Joseph case are not analogous. Landor was a prisoner under the control of the state, while Judge Joseph is an officer of the law who committed a crime by attempting to aid an illegal immigrant escape ICE. As Professor Fahey points out, the "contract" involved is between the state and federal governments. The state government could be liable for the actions of its agents, who are subject to state discipline. Landor could attempt to sue the state for the violation of having his head shaved.
Bridget: Thanks for writing this. There's something about it that I just don't understand, however.
You write that "the federal statute is not the governing legal document." Why not? It's not one or the other. I agree that if the state and the feds actually sign an agreement, that agreement "should be regarded as a distinctive form of domestic law, just as treaties are a distinctive form of international law." And I agree that RLUIPA "only takes effect once a state agrees to voluntarily adopt and enforce its requirements." So far, so good. But in that case, aren't there two "governing legal documents"--the agreement and the statute?
Say, for instance, that the federal government enters into many contracts with private parties to perform services (which it does!). It then also enacts a statute providing that no one--whether an employee of a contractor or otherwise--may interfere with the operation of a federal contract, and is subject to civil damages and possible criminal sanctions if it does. That statute is obviously permissible N&P legislation, and it applies *in addition* to the terms of the contracts themselves, even if those contract terms don't include a similar term that regulates employees/outsiders.
If that's right, why is Congress precluded from imposing a prohibition on third parties to prevent them from undermining the operations of the federal/state contract--which is what it did in RLUIPA?
(Sabri and Salinas establish this, btw--and Gorsuch's effort to distinguish them is obviously inadequate.)
Interesting post! But there are few things that still get me stuck in the analysis.
First, what is this "intergovernmental agreement" in the case of Landor and RLUIPA? Is it just RLUIPA itself? If that's the case it seems like a very strange contract. One side drafted the contract and said "take it or leave it". There doesn't seem to be any negotiation aspect to the agreement. This is part of what makes me strain when trying to understand. If congress wants to negotiate with the states then it has to either do this in the run up to passing the law--where negotiating with 50 independent parties would seemingly take a long time and produce contradictions--or re-pass a new law every time a state doesn't like something. This seems like an *impossible* congressional time challenge on any 2 year period of congress. It seems like SCOTUS has always been wary of a strict contractual analogy whenever this comes up (e.g., King v Burwell and even Bostock rejected a strict contract analogy).
Secondly, I largely agree with your anti-commandeering arguments when it comes to your example in Massachusetts, but doesn't the party trying to enforce the law matter, i.e. private 3rd parties vs the executive branch? The executive branch might be more susceptible to political whims which is why I would think congress would give the harmed parties standing to sue as they did in RLUIPA. Why isn't this distinction enough?
In my view Landor and the Judge Joseph case are not analogous. Landor was a prisoner under the control of the state, while Judge Joseph is an officer of the law who committed a crime by attempting to aid an illegal immigrant escape ICE. As Professor Fahey points out, the "contract" involved is between the state and federal governments. The state government could be liable for the actions of its agents, who are subject to state discipline. Landor could attempt to sue the state for the violation of having his head shaved.