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Florida State University Law Review





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This Article argues that administrative processes, in particular rulemaking’s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration’s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice.

Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored until the Obama Administration promulgated a new AFFH rule in 2015 that pushed state and local governments to take desegregation seriously. Not surprisingly, the Trump Administration sought to undermine this new rule. But what was surprising was the vigorous resistance the Trump Administration faced from state and local governments seeking to preserve the 2015 rule. Though theories of uncooperative federalism and of administrative federalism abound, there are relatively few examples of how uncooperative federalism facilitates and channels resistance all the way down. State and local government bodies, including sub-local entities such as public housing authorities, leveraged their insider status in order to push back against the Trump Administration’s deregulatory move.

Given the increased polarization of the country and the reach of cooperative federalism to all levels of government, such affirmative resistance has broad implications when it comes to federal policymaking and federal-state-local relations. Federalism extends points of resistance downward from federal agencies to states and local government bodies. Ultimately, when it comes to the future of fair housing and the significance of internal resistance to federal backsliding on federal obligations associated with agency oversight of federal-state and federal-local programs, there are reasons for both pessimism and cautious optimism. Uncooperative federalism creates space for state and local governments to defend policies, to insist that federal agencies live up to their statutory obligations, and to resist federal backsliding.



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