Local Government Law

A Practical Guidebook for Public Officials on City Councils, Community Boards, and Planning Commissions

Gerald A. Fisher

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000379730
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Planificación de ciudades y desarrollo urbano

Local Government Law provides a unique resource with concise, easy-to-understand explanations of important legal issues faced by local public officials, community boards, and city councils. From the moment officials take office, they face decisions related to basic principles found in state and federal law. The same is true for those in the private sector aiming to work successfully with local governments. This practical guidebook will empower public and private representatives with a functional grasp of legal principles, with chapters explaining what a local government is, the requirement to follow due process, local land use controls, the basics of the Freedom of Information Act, and many other important subjects that regularly arise. As a practical guidebook on local government law, this book provides a basic and empowering understanding for officials and private actors in the local government arena.

Chapter 1
Just What Is a “Local Government?”

You have just been elected or appointed to serve as a local government official. Great! Your involvement allows you to make a meaningful contribution and provide a service to your community. But one nagging question may be in the back of your mind: what precisely is a “local government?” This question leads to others, such as: what are the limits of local government authority? Of all the actions that can be taken by local, state, and federal government, what can local officials legitimately set their sights on accomplishing? These are very basic and legitimate questions.

To begin answering these and related questions, we start by examining the allocation of authority among the local, state, and federal governments with the goal of seeing where local government fits in the overall scheme. Where the functional lines are drawn between these three levels of government is certainly not within the bounds of common knowledge. It can safely be assumed that local, state, and federal governments should not all perform the same functions. If they did, it would result in ongoing conflicts and confusion, with tasks and positions duplicated, all leading to maximum inefficiency. Instead, when our system is functioning at its best, each level of government stays in its own lane. For local governments, this involves doing such things as determining how residents are to be provided with public safety services, such as police, fire, and emergency response, and quality of life enhancements, such as local parks or a thriving commercial center. Stated more broadly, local government can best look out for matters which are predominantly of local concern. The federal government cannot account for or accommodate the nuances of such local matters, just as local governments couldn’t hope to independently provide for the national defense.

A. The Federal-State Model

The federal government was designed to have limited powers, with the states and the people having broad authority.

The constitution “enumerates” specific powers delegated to the federal government.

At the time the constitution was initially ratified, ten amendments, known as the “Bill of Rights,” were approved. The Tenth Amendment declares that if the constitution does not expressly enumerate a power as belonging to the federal government, it is reserved to the states or the people.

Starting with a broad overview, here is a look across some key organizing principles.

The federal government was designed to have limited powers, with the states and the people having all the rest. Specifically, the federal constitution “enumerates” specific powers delegated to the federal government. At approximately the time the Constitution was initially ratified, ten amendments, known as the “Bill of Rights,” were added. In precise explanatory language, the Tenth Amendment declares that if the Constitution does not expressly enumerate a power as belonging to the federal government, it is reserved to the states or the people.

Moving to the states, each state has its own constitution. These constitutions lay out the plan of government, including the recognition and establishment of local governments in various forms, such as cities, villages, towns, townships, and counties.

To ascertain the authority of a local government, the place to start looking is the state constitution, which may contain a direct delegation of authority to local government, or may direct the state legislature to establish and authorize local governments. Most likely, the constitutional plan of government will provide a general delegation and direct the legislature to fill in the details. Local governments are actually considered to be a subdivisions of the state government, contributing an essential role specialized around unique local conditions and issues – with authority over matters of local concern to be exercised closest to the people.

B. Our Founding Documents Begin the Story

1. Viewing “local government” in the broad context

To view local government in context, we must start at the top of the power structure – the federal government. In the creation of the federal government, the sphere of state authority was defined. From there, we look to state constitutions and laws, which in turn enable and define local governments uniquely in each respective state.

2. “Splitting the Atom” of Sovereign Authority into State and Federal Spheres

In place of a king reigning over our government, the framers of the U.S. Constitution established a system of “checks and balances.”

Consistent with this notion of distributed authority, the drafters established two separate levels of government: one “sovereign” federal government, and several “sovereign” state governments, with powers divided between them.

This division of federal and state power created what is known as a “federalist” system.

The Supreme Court has commented that: “Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government.”

The Constitution was drawn up in an era when, throughout the world, the power of a country was typically focused on lone “sovereigns,” or supreme rulers, sometimes known as “kings” and “queens.” The drafters of our constitution were all too familiar with the inequities of life under the King of England, and wanted no part of this form of government. So, an attempt was made to create a dispersed power structure within the government to make sure that no person or body had too much authority.

In place of a supreme ruler for our government, the framers of the Constitution established a system of authority bifurcated into federal and state levels, with the view of preventing (in theory) abuses of power. Consistent with this notion of distributed authority, the drafters established two separate levels of sovereign government: one “sovereign” federal government, and several “sovereign” state governments, with powers divided between them so as to leave neither the feds nor the states as an all-powerful supreme ruler. Instead, there is a requirement for cooperation and coordination among these sovereign powers. This division of federal and state power created what is known as a “federalist” system. A justice of the US Supreme Court once offered the following insightful comments about this dual “sovereign” arrangement:

Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government …¹

The federal constitution draws a line of demarcation between the powers of the federal and state governments. It names (“enumerates”) specific, concrete powers of the federal government, and leaves everything else to the states. The theory was that the power of the federal government would be strong but narrowly limited, and the power of the state governments would be expansive – but subordinate to the federal government on the matters specifically delegated to it.

As another part of the system of “checks and balances,” the first three chapters (“articles”) of the Constitution divide the federal government itself into three co-equal branches, each with independent duties: the legislative branch (Congress), the executive branch (president), and the judicial branch (court).

Here are some of the significant enumerated powers granted to Congress in the Constitution:

• to establish and collect taxes;
• to provide for the defense of the country;
• to regulate interstate and foreign commerce;
• to coin money;
• to establish post offices;
• to establish patent, copyright, and trademark laws;
• to set up the federal court system under the Supreme Court;
• to declare war, and make rules concerning captures on land and water;
• to raise and support the army and navy, and provide for calling up and organizing of the militia to execute laws of the Union, suppress insurrections, and repel invasions;
• to make all laws necessary and proper for the execution of all the powers vested by the constitution.²

The Constitution also contains a list of powers effectively forbidden to the states. In joining the federal union, the states agreed to fully delegate these powers to the federal government in order to prevent conflicts among individual state actions. This list applies to local governments as well because local government is an extension of state government. Powers forbidden to the states (and to local government) include:

• entering into any treaty, alliance, or confederation;
• coining money;
• making anything but gold and silver coins a tender in payment of debts;
• passing an ex post facto law (one that retroactively changes the legal consequences of actions that were committed before the enactment of the law), bill of attainder (one that singles out an individual or group for punishment without a trial), or any law impairing the obligation of contracts.³

And the Constitution restricts states from the following actions unless Congress gives its consent:

• charging a tax or duty on imports or exports (with limited exceptions);
• charging a duty for the weight of cargo;
• keeping troops or ships of war in time of peace;
• entering into any agreement or compact with another state or foreign power;
• engaging in war unless actually invaded or faced with imminent danger.⁴

The first ten amendments to the Constitution, the Bill of Rights, were adopted by the states about the same time as the Constitution, in the latter part of the 1700s. Rather than explaining the rights of the federal government, The Bill of Rights names important rights of the people in the form of protections from the federal government. Some of the most familiar protections of the people include the right to freedom of speech and religion (First Amendment), the right to bear arms (Second Amendment), and the right to due process (Fifth Amendment).

The last amendment in the Bill of Rights is the Tenth Amendment. This amendment does not identify a specific right of the people. Rather, the Tenth Amendment declares the all-important division of authority between federal and state governments, which indirectly defines the powers of state governments in the federal-state system. The Tenth Amendment says that any power not expressly delegated to the federal government or prohibited to the states is automatically reserved to the states. In other words, the Constitution specifically assigns certain key powers to the federal government, and then announces that any power it did not assign to the federal government belongs to the states. Although it has not always been interpreted with such simplicity, this basic formula created the essential power dynamic that on the one hand facilitated the uniting of individual states into one great nation and on the other hand (but at the same time) preserved the “sovereignty” (independent authority) of the individual states.

C. State Constitutions and Legislatures Complete the Story

Rather than creating local governments as full “sovereigns” of their respective realms, state constitutions and laws paint a picture showing local governments as extensions or subdivisions of the state government structure. They are essentially “creations” of the state, providing local governmental mechanisms closer to the people in order to better address matters of local concern.

While the federal government and the states are separate spheres of sovereign authority, local governments are not independent powers. Instead, the general rule is that states delegate specific powers to local governments, with the state retaining the right to adjust this delegation.

Picking up where the federal constitution leaves off, the several states have each adopted their own respective constitutions. These state constitutions cover a lot of ground. For starters, they lay out the basic plan or system of government for the state, generally identifying the same division of power into co-equal branches at the state level as were established at the federal level: the legislative branch (state legislature), the executive branch (the governor), and the judicial branch (the state courts).

State constitutions provide a general idea, but not the full story, on how authority is divided between state and local governments. Rather than creating local governments as full “sovereigns” of their respective realms, state constitutions, and laws paint a picture showing local governments as extensions or subdivisions of the state government structure. They are essentially “creations” of the state, providing local governmental mechanisms closer to the people in order to better address matters of local concern. One of the most respected treatises on the subject of municipal law characterizes local governments in the following terms of admiration:

Since our country was conceived on the theory of local self-government, political power has, from the beginning, been exercised by citizens of the various local communities. Having been so dedicated by long practice, local self-government has come to be regarded as the most important feature in our system. The American people have always acted upon the deep-seated conviction that local matters can be better regulated by the people of the locality than by the state or central authority. One controlling idea of local self-government is to bring the officials nearer to the people whose interests are immed...