Federal-State Programs and State—Or Is It Federal?--Action

Modern governmental programs increasingly involve government action that can be traced in some way to both the federal government and a state or local government. For example, the federal government may offer state or local governments money in exchange for the state or local government promising to follow certain rules. What if a private citizen wants to challenge the government action resulting from one of these situations as unconstitutional or otherwise illegal? Who should be sued and were those defendants acting under color of state authority or color of federal authority? Does it matter? These questions do not admit of easy answers, and the Supreme Court has not tried. Indeed, the Court has suggested that state conduct taken in order to comply with a federal statute might be immune from constitutional attack, a result that would certainly be counterintuitive. Lower courts, on the other hand, have tried to determine whether the officials (be they state or federal) were acting under color of state authority or color of federal authority. They seem to be borrowing terminology and ideas from the “state action” cases where courts try to determine whether the actions of individuals who appear to be private citizens or organizations are attributable to a government. Yet the actual outcomes of those cases are hard to reconcile with the less-than-crystal-clear doctrine in that area. This article explores the various kinds of cases dealing with this issue and tries to make sense of them. It shows that not only is this area marked by inconsistency, but that courts have frequently used the inconsistency to avoid addressing substantive issues.