The local lawmaking loophole

• Published in: The Yale law journal Vol. 133; no. 8; pp. 2613 - 2700
• Main Author: Rosenbaum, Daniel B
• Format: Journal Article
• Language: English
• Published: New Haven, CT Yale Law School 01.06.2024; Yale University, School of Law; Yale Law Journal Company, Inc
• Subjects: Accidents; Accountability; Analysis; Biological organs; Civil rights; Community policing; Contracts; Cooperation; Courts; Evaluation; Freedom of information; Governance; Government accountability; Government agencies; Infrastructure; Intergovernmental relations; International cooperation; Interpretation and construction; Jurisdiction; Law; Laws, regulations and rules; Legislatures; Legitimacy of governments; Local elections; Local government; Local laws; Money; Oversight; Police; Policing; Political aspects; Political science; Power; Powers and duties; Prisoners; Public debt; Ratification; Regional variations; Regionalism; Regions; Rights; Technical skills; Technocracy; Transparency; Transparency in government; UNITED STATES
• ISSN: 0044-0094; 1939-8611

Local governments contract with each other for a wide variety of purposes: to deliver services, administer grant money, coordinate emergency responses, and manage infrastructure projects. These interlocal agreements (ILAs) have been embraced by local officials keen to forge administrative efficiencies in an environment of limited resources. By contracting with neighboring and overlapping governments, a local entity can draw upon funding and technical skills that it does not otherwise possess alone, operating in theory to the ultimate benefit of residents across its region. Yet, the growing prevalence of ILAs belies two underappreciated features of their use. First, when governments enter into ILAs, they do not only exchange basic services and pursue technocratic efficiencies; they also create new policies, announce substantive priorities, and establish new governance frameworks. ILAs are especially prominent in collaborative policing regimes. Acting through an ILA, local governments can expand and dissolve policing jurisdictions, create new cross-jurisdictional policing programs, increase and consolidate jail facilities, and provide rights to certain inmates while declining to extend those same rights to others. ILAs thus function as consequential lawmaking documents-even as they also operate outside the ordinary legislative channels that constrict formal exercises of local power. Second, ILAs fundamentally suffer from a deficit of democratic accountability. Local legislatures are remarkably removed from the negotiations by which ILAs are executed, implemented, monitored, and modified. The very factors that make ILAs potent-vague and confidential terms, malleable ratification procedures, ironclad contract law fortifications-render them difficult for members of the public to scrutinize, let alone, at times, even access. And ILAs regularly give birth to brand-new local government entities, which then breed with each other, using subsequent ILAs to create subsequent local entities, a domino effect of local power and attenuated local accountability. The promise of ILAs as organs of regional lawmaking comes at the peril of public transparency. This mismatch - between expansive power and limited transparency - is no legal accident, but rather can be traced directly to state statutory schemes. Nearly all states have adopted interlocal cooperation acts that broadly empower ILAs and often contain filing requirements to ensure their transparency. Yet public stakeholders systematically fail to take these requirements seriously. Local governments do not consistently follow them, state agencies do not consistently monitor them, and courts do not consistently enforce them. Their collective inactions enable a transparency void. As this article explains, ILAs must - and can - be brought more firmly into the local governance spotlight without sacrificing their increasingly integral role in the legislative toolkit. In the process, the article also paints a different picture of local institutions under a federal system: one where local actors navigate state oversight as it is expressed through administrative silence, separate and distinct from manifestations of oversight expressed through political voice.