By Jill E. Habig and Joanna Pearl | Public Rights Project
On April 23, the U.S. Supreme Court will hear oral argument in Department of Commerce vs. New York, a case arising from the Trump administration’s addition of a citizenship question to the 2020 census. The Court will consider the district court’s holding that the Secretary of Commerce’s reinstatement of a question about citizenship to the 2020 census violated the Administrative Procedure Act and whether a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker.
In addressing these issues, the Court’s decision will have a significant, practical effect on communities across the country. It will impact families’ ability to obtain federal assistance for food, health care, and housing as well as the electoral map of the country for years to come.
Plaintiffs in the underlying action—and respondents before the Court—are a coalition of 18 states and a number of local governments, including the City and County of San Francisco. The states and cities prevailed in federal district court and the Supreme Court granted immediate review.
The state and local response to the federal administration’s actions shows the power of localities to protect their communities through the courts. And this power is not limited to local governments’ ability to challenge the federal government.
Yesterday, Public Rights Project, the Office of San Francisco City Attorney Dennis Herrera, Justice Catalyst, and the San Francisco Affirmative Litigation Project at Yale Law School released Local Action, National Impact: A Practical Guide to Affirmative Litigation for Local Governments. The guide presents a bold vision that local governments can—and should—proactively protect the rights of their communities by enforcing the laws written to protect them.
Civil public lawyers typically provide litigation defense and advice to their government clients. They defend their clients in tort, civil rights, contract, employment, land use, and other matters. They respond when a city department asks for legal counsel. They also write contracts and draft legislation. On the criminal side, district attorneys work with their police departments and other law enforcement colleagues to prosecute criminal matters. These are critical functions of local government public lawyers.
Yet across many jurisdictions, both civil and criminal public lawyers can also act as civil plaintiffs. They can initiate actions to address violations of local, state, and federal laws that harm their communities. Cities and counties can, for example, enforce laws that protect individuals’ abilities to take out a mortgage, gain equal access to housing or a job, invest in their education, drink clean water, and breathe clean air. Through affirmative investigations and litigation, local government public law offices can act both in their own interests and those of the public. Using this authority can fill enforcement gaps left by federal inaction and restrictions on private litigation like mandatory arbitration.
This practitioner’s guide aims to help municipalities build or expand affirmative litigation programs by: (1) making the case for affirmative litigation as a tool at the local level; (2) providing specific case examples of how this tool has worked for local jurisdictions nationwide in areas like public health and the environment, financial services, and civil rights and constitutional protection; (3) offering suggestions for local offices seeking to develop affirmative litigation practices, such as partnering with law schools to enhance capacity; and (4) providing suggested resources for offices ready to jump into this work.
While cases against the Trump Administration like the census matter rightly grab headlines, the next step is for government to expand beyond reacting to the federal government and use their proactive authority to enforce their residents’ legal rights. If you’re interested in learning more about how your city or county can get more involved in affirmative litigation, please reach out to Public Rights Project at https://www.
Jill Habig is the Founder & President of Public Rights Project. Previously, she was a top advisor in the California Attorney General’s Office under Kamala D. Harris and served in the San Francisco City Attorney’s Office.
Joanna Pearl is the Legal Director at Public Rights Project. Previously, she was the Chief of Staff and Acting Principal Deputy Director for the Enforcement Office at the Consumer Financial Protection Bureau, where she helped build the Bureau’s enforcement team after the passage of Dodd-Frank.