Local Government and the States

Autonomy, Politics, and Policy

David Berman

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429016103
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

This book offers an overview of the legal, political, and broad intergovernmental environment in which relations between local and state units of government take place, the historical roots of the conflict among them, and an analysis of contemporary problems concerning local authority, local revenues, state interventions and takeovers, and the restructuring of local governments. The author pays special attention to local governmental autonomy and the goals and activities of local officials as they seek to secure resources, fend off regulations and interventions, and fight for survival as independent units.Now, in a thoroughly revised second edition, this book examines marijuana use, minimum wages, the establishment of sanctuary cities, and the regulation of ride-sharing companies. Looking at the intergovernmental struggle from the bottom up, and in the process examining a variety of political activities and policies at the state level, Berman finds considerable reason to be concerned about the viability and future of meaningful local government. This book improves our understanding of the relationship between state and local governments. It provides a thoughtful look at the past, present, and possibly the future of local home rule.

1 Introduction

Relations between local governments and state governments in the United States have been of considerable interest to scholars from a wide variety of disciplines including law, political science, economics, history, sociology, public administration, and public policy. Many have focused in one way or another on local autonomy or local home rule. I use these terms interchangeably to refer to the general right of local governments to initiate policies they deem appropriate and to be protected from outside interference in a sphere of activities reserved to them.¹ Local autonomy reflects the principles of local self-determination, local self-government, and local self-sufficiency. Some too commonly equate local autonomy with local power, by which is meant the ability of local officials to make meaningful decisions. Scholars, as we note below, differ over how much power local governments actually have in this respect and, indeed, over how much power they should have.

To the student of intergovernmental relations, the term government power takes on a different meaning. In this context, it refers to the ability of one unit of government to influence another or, more broadly, the ability of one type of government to defend or promote its interests in the intergovernmental system. How powerful are localities in this respect? Given their legal status as “creatures of the state” they are at a severe disadvantage in dealing with state governments. The legal status of local units, however, just begins to tell the story about their relationship with the states. Because of what one might call the forces of localism – local officials and their organizations being among them – state–local relations may be said to resemble those between the federal government and the sovereignty-sharing states. Still, although one can speak with considerable admiration of the political clout of the local forces, local officials have had reason to complain about their treatment at the state level, especially in recent years, and there is considerable room for improvement along the lines of local autonomy.

This volume uses local autonomy as a standard by which to measure state policies affecting localities and as an aid in framing policy options. I also look at how the goals and activities of local officials and the associations that represent them relate to the norms of local autonomy. As a study in intergovernmental politics, the book is additionally concerned with a multitude of questions concerning local influence on state policy. These concerns carry us into an examination of broader intergovernmental factors affecting this relationship, especially the influence of the federal government, the legal and the historical dimension of the conflict between the two units of government, the political context in which local–state relations take place, and into issues or problem areas related to local authority and finance, state intervention, and the restructuring of local government.

This chapter, setting the stage for what follows, takes a broad overview of the philosophical, legal, and political debate over local autonomy and questions concerning local power; of the nature of the intergovernmental political battle, including assumptions about winners and losers; and of some operational theories about how local officials fit into the political process in the states and about how state–local issues arise and are resolved.

Law, Politics, and the Power of Local Governments

There is no doubt about the formal legal status of the some 90,000 units of local government in this country: they are at the bottom, at the mercy of the states. To quote from the much quoted nineteenth-century authority on municipal law, Judge John F. Dillon who did not like to mince words:

Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breaths into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control.… We know of no limitation of this right so far as corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.²

Officially, cities and towns as municipal corporations are no better off than conquered provinces. Counties and other units of local government as quasi-municipal corporations – created by the state for its own purposes – are even worse off in legal status.

Among legal scholars, however, there has been considerable disagreement about the actual significance of this formal legal relationship between state and local governments and a great debate has developed over just how much power local governments have and, indeed, should have. On one side, for example, Gerald E. Frug contends that legal doctrines, stemming from a deeply imbedded liberal ideology hostile to strong local government, have made American cities virtually powerless, unable to solve the problems that confront them or to control their future development.³ Frug seeks to strengthen local government power. To him, a strong local government is vital to “public freedom,” which he defines as the ability of people to participate in the basic societal decisions that structure their lives. To change things, however, will be no easy task: “the powerlessness of cities has become so basic to our current way of understanding American society that no modest effort to revitalize the cities by decentralizing power can succeed. Real decentralization requires rethinking and, ultimately, restructuring American society itself.”⁴

Richard Briffault, on the other hand, contends that the question of local powerlessness turns on how we define “power.” According to Briffault:

If power is defined as a legally enforceable right to existence and continuation, to control local resources and regulate local territory and to prevail in conflicts with higher levels of government, then local governments generally lack power. There is no right to local self government.⁵

Yet: “if power refers to the actual arrangements for governance at the local level, then local governments possess considerable power.”⁶ Briffault, unlike Frug, looks at all municipalities, suburbs as well cities. He finds that, in practice, most municipalities are far from powerless and that many have considerable autonomy over matters of concern to them. He finds a strong commitment to localism in the political and legal culture of the country underlying this general autonomy. He does, however, concede that wealthy suburban municipalities are far better off than central cities when it comes to having the power to do what they want to do in light of their needs and priorities.⁷ Briffault, along with claiming that the extent of local legal power is generally understated, is also skeptical about the net benefits of having so much local power and about the value of extending local autonomy. He argues, for example, that localism reinforces territorial economic and social inequities and, thus, serves as an obstacle in securing social justice.⁸

While disagreeing about the amount and desirability of more local power, both scholars point to the importance of the nation’s political culture or belief system in shaping ideas regarding local self-government and both demonstrate concern for the powerless status of cities. Both scholars reviewed a wide range of literature in making their cases but neither of them gave much attention to the political factors other than broad cultural or ideological ones affecting local government power or the particular problems of central cities.

How much power do local units have? How much power should they have? On the descriptive level, social scientists have generally agreed with Frug in regard to the absolute powerlessness of cities, though the constraints they have found are not necessarily legal ones, but a variety of socio-economic and political conditions.⁹ While there has not been much of an effort to pinpoint the cultural underpinnings for this, those finding large cities powerless can point to a strong tradition in American culture which not only extols the virtues of small local governments but carries a strong anti-big-city bias. Urban scholars, overall, have had very little to say about suburban governments, though one finds in the literature an appreciation of the fact that they are, on the whole, in several respects much better off than the older central cities.¹⁰

One study of local governments in general suggests that local officials, while under numerous constraints, have at least the potential ability to make important decisions affecting the wellbeing of their citizens.¹¹ In practice, some local governments have a modicum of legal protection against state interference and some control over local affairs through statutes or constitutional provisions that give them home rule. More fundamentally, on the political level they have been able to influence the course of state and federal policy, sometimes with considerable success. The related question implied here – about the extent to which local officials actually take advantage of their opportunities to assume authority and make important decisions – is one that we will turn to later.

Another question of some debate has been what would be the significance of giving local governments more authority? The short answer is that decentralizing government down to the local level would not guarantee any set of outcomes. One would get whatever is played out in the political process of local jurisdictions that differ greatly as to population size, economic and social conditions, political culture, and governmental professionalism and capacity. Much would depend on the views and ideological disposition of the dominant elements in the local jurisdiction.¹² Some are far more likely than others to be responsive to people’s needs.¹³ Currently, progressives praise many cities for assuming a leadership role in attacking important problems such as economic inequality (seeking for example, living or minimum wages, and affordable housing policies) and global issues such as sustainable development and climate change, in effect, filling in for the lack of action in these areas at the state and federal levels.¹⁴ With these developments progressives have taken a pro-local government position historically taken by conservatives. Some have seen progressives and conservatives, though strange bedfellows, banding together in a drive for local empowerment.¹⁵ This does not, however, seem to be the case. With the emergence of more progressive city governments and conservative gains on the state and federal levels, conservatives have been moving in a more anti-city direction when it comes to local governmental power. They have fought back by cutting state aid and, more directly, the preemption or voiding of local policies, especially those of a progressive nature. Localities have often had the growing dual problems of having to do more with less because of financial limitations and of not being able to do anything at all because of state preemptions and prohibitions.

The normative questions raised by Frug and Briffault concerning the desirability of pursuing local autonomy have long been debated by scholars and practitioners and frame our discussion in several of the following chapters. Proponents of shifting authority to local units have been able to draw upon a rich American tradition in which local governments are seen as closer and more responsive to the people and are praised for providing a venue through which people can develop habits of citizenship and a sense of civic responsibility. Self-governing local communities are viewed in this tradition as basic forms of social organization – extensions of the home and family – and as the backbone of democracy. Proponents also contend that local autonomy produces good public policy because it encourages initiative and experimentation and places authority in the hands of those best prepared to develop solutions to unique local problems. Those taking a public choice perspective find the vast number of local governments a blessing because it allows people to shop around for the type of community that best suits their needs and desires.¹⁶ On the negative side, critics find local governments insensitive to rights of minorities and too parochial, being indifferent to how their decisions affect the welfare of neighboring jurisdictions or the broader area where they are located.

Some observers would join the normative call for greater local autonomy if they could alter the size of existing local government units, making them either larger or smaller. Reformers have long called for a shift toward metropolitan or regional governments to overcome inequities and better address area-wide problems. From the other side has come the contention that some local governments are already too large to effectively serve their citizens. They call for more neighborhood government or for the breaking up of existing municipalities into smaller units. Some want to restrict home rule to those jurisdictions that are capable of standing on their own feet and provide quality public services, that is, to make governmental performance the criteria for local autonomy. Historically, the battle over local autonomy or home rule in the Un...