Bryna Godar (University of Wisconsin Law School) has posted Property, State Power, and the Unfolding Federalism Fight on SSRN. Here is the abstract:
Over the past year, property law has emerged as a central site of state and local pushback on federal action. From zoning to trespass to nuisance, states and localities are flexing their long-held, “quintessential” power over property to oppose the expansion of ICE detention facilities and block federal officers from using state and local property. The federal government and its contractors are pushing back in turn, filing lawsuits seeking wide-reaching exemptions from state and local regulations.
These disputes are exposing the cracks in existing federalism doctrines, underscoring the ways in which they are poorly equipped to handle the shift from cooperation to heightened antagonism in federal-state relations. In particular, the federal government and its contractors are seeking to exploit the ambiguities of intergovernmental immunity, pushing to broaden the already confused doctrine in ways that would upend core federalism and separation of powers principles.
This Article maps these disputes, laying out the property-based tools states and localities are using to push back on federal conduct and analyzing how these efforts intersect with existing federalism doctrine and theories. Given the minimal attention intergovernmental immunity has received in legal scholarship and case law—and its central role in ongoing litigation—this Article pays particular attention to this doctrine, examining its origins, limits, and exploitation. The Article argues that courts should resist the Trump Administration’s efforts to further expand the doctrine, instead allowing states to serve as one of the few remaining checks on federal executive overreach.
Recommended!
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