Cooperative or “marble cake” federalism enables federal, state, and local governments to collectively interact to address common problems. It also enables politicians and policy makers to end-run the Constitution, according to Professor Ava Ayers, director of the Government Law Center.

In an article recently published in the Villanova Law Review, Ayers argues that cooperative federalism is often used to achieve discriminatory goals that would otherwise be barred.

Example: States are generally prohibited under the Equal Protection Clause from discriminating against noncitizens, but Congress isn’t. So, with measures like the Welfare Reform Act of 1996, which was intended to deny public benefits to noncitizens, Congress latched onto cooperative federalism to allow the states to do what they couldn’t otherwise.

“Discriminatory Cooperative Federalism” (Villanova Law Review, Volume 65, Number 1, 2020) is a tutorial or roadmap on how to challenge discriminatory cooperative federalism, addressing the pluses and minuses of various strategies. Ayers said she was compelled to write about the issue through “frustration with how unclear the law is in this area, and a fascination with how strange it is.” It’s also right up the alley of the Government Law Center.

Read on SSRN: Discriminatory Cooperative Federalism

“The GLC has been studying state and local governments’ involvement with immigration and working with policymakers at the state and local level to help ensure that policy decisions are made on the basis of adequate information,” Ayers said. “Those state and local policymakers are sometimes caught between the rock of the federal government, which pushes them to treat noncitizens differently, and the hard place of the Constitution, which says they can’t. The GLC aims to help them navigate situations like that.”

Ayers’ article largely focuses on benefit programs, such as Medicaid, food assistance, and unemployment, on which people will likely rely during the COVID pandemic and recovery. Nearly a quarter of the people in America are immigrants or children of immigrants.

“When state governments discriminate against immigrants, the Supreme Court treats it like racial discrimination, which is to say with enormous skepticism and willingness to overturn the state law—except when it doesn’t,” Ayers said. “Generally speaking, states can’t discriminate against immigrants, but the federal government can. So in cases of ‘cooperative federalism,’ which means, roughly, federal programs in which states play a role, both actors are involved, and the doctrine sort of falls apart. I’m fascinated by places where the doctrine falls apart.”

She is quick to note that cooperative federalism is not always used for discriminatory purposes, and points to environmental statutes based on a cooperative federalism framework.

Regardless, Ayers said the interplay between federal, state, and local governments opens myriad routes to challenge since each layer of government is subject to its own legal and often overlapping constraints.

“I think it’s useful to analyze laws by thinking about what challenges might be brought, and how they might come out,” Ayers said.  

Ayers, who has run the GLC and taught at Albany Law since 2016, is a graduate of Vassar College and Georgetown University Law Center. She clerked for the Hon. Sonia Sotomayor, now a U.S. Supreme Court justice, during her term on the U.S. Court of Appeals for the Second Circuit. Ayers also served as senior assistant solicitor general in the New York State Department of Law. She said her teaching informs her scholarship, and her scholarship informs her teaching.

“I think my scholarship is what qualifies me to teach,” Ayers said. “I’m living in these legal materials, not just passively reading them, because I’m trying to make sense of them for my scholarship. The students’ questions take me deeper into the material than I could ever go on my own, and their observations and challenges make me a better legal thinker every semester.”