Can States File For Bankruptcy?

The financial pressure of the coronavirus pandemic has forced many families and businesses to consider filing for bankruptcy. It has also sparked a hot debate about the ability of governmental bodies to file for bankruptcy protection. If cities, towns, counties, and school districts are allowed to file for bankruptcy, why not states? 

What Does The Law Saw? 

Right now, the answer to this question is that the bankruptcy law does not apply to states. SInce the late 1930s, federal bankruptcy law has allowed “municipalities” to file for bankruptcy under Chapter 9 of the bankruptcy code. The term “municipality” is defined in the bankruptcy code as a “political subdivision or public agency or instrumentality of a state.” This means cities, townships, school districts, and other government units like sewer and water districts can file, but a state cannot. A state, by definition, cannot be a subdivision, agency, or instrumentality of itself. 

Laws Can Be Changed 

However, Congress could change the bankruptcy code to allow states to file. Policymakers are always tinkering with the code, as we saw last year with the passage of new rules that apply when small businesses file under the new Subchapter V. It is possible that the financial crisis brought on by the COVID-19 pandemic will inspire Congress to pass a new law that allows states to file for bankruptcy. 

Possible, but unlikely. 

As the Council of State Governments points out, “the mere existence of a federal law allowing states to declare bankruptcy would increase interest rates, rattle investors, raise the costs of state government, create more volatility in financial markets, and erode state sovereignty under the 10th Amendment to the U.S. Constitution.” 

Those are some pretty significant downsides. 

Bad For Them, But Good For Me? 

If allowing states to file for bankruptcy is so bad, why are families and businesses encouraged to seek bankruptcy protection? Part of the answer lies in the scale of the issue. A single family or business is not at all equivalent to a state. Comparing the two is like comparing apples and toothpaste. 

From a more practical point of view, the benefits of bankruptcy far outweigh the downsides for families and businesses in financial distress. Bankruptcy offers a fresh start to individuals and families who file under Chapters 7 or 13, and businesses who file under Chapters 7 or 11. While it may be more difficult to access credit post-bankruptcy, and some business opportunities may be out of reach, getting out of a financial hole and back on solid ground is typically worth it. 

Experienced Attorneys Serving The Milwaukee Area

Milwaukee area families and businesses who are facing financial difficulties, and beginning to question what their options are, should not hesitate to make an appointment with one of the experienced bankruptcy attorneys on the Hanson & Payne team. We can offer advice on what options are available, and help find a path forward.