In 2020, the National League of Cities (NLC) published the Principles of Home Rule for the Twenty-First Century, a groundbreaking new vision of local-government legal authority to match the increasingly central role that cities play in our contemporary system of governance. (I was on the drafting team, along with Richard Briffault, Nestor Davidson, Paul Diller, Sarah Fox, Laurie Reynolds, Erin Scharff, and Rick Su.) The Principles includes a model home rule constitutional provision that seeks to protect and expand local government authority, fiscal capacity, and self-government, in part as a response to increasingly aggressive state overrides of local policymaking—the so-called “war on cities.”
As in every era when enhanced home rule is proposed, there has been skepticism—worry that local governments will be venal, corrupt, exclusionary, or irresponsible. Nestor Davidson and I have responded to these criticisms in a longer piece. But I mention briefly three points here.
The first is that resistance to local power is not new. The same criticisms animated those opposed to municipal power over 150 years ago. Remember John Dillon of Dillon’s Rule? And yet critics in every age tend to either romanticize state government or fail to provide an answer to the question: as compared to what?
The second is that the parade of horribles that anti-localists raise—that too much local control is responsible for the housing crisis, the pension crisis, the corporate subsidy crisis, the environmental crisis—ignores the fact that all these crises and more have occurred under a system of state supremacy. State constitutional protections for local governments have always been thin, even in home rule jurisdictions. Metropolitan fragmentation and suburban land use exclusion have occurred under a regime of virtually absolute state power; states generally have exacerbated those problems. Indeed, actual municipal home rule has never been tried, in any state. In 1915, Robert Brooks observed that home rule reforms “stop[ped] just short of the limits within which is would confer any real freedom upon our cities.” That is still the case.
The third point is that the costs of state supremacy and city powerlessness are high and getting higher. States are blocking policy experimentation and undermining the ability for local governments to address a range of problems, including notably the COVID-19 public health emergency. And many of these state interventions have little to do with internalizing externalities or protecting vulnerable minorities. Whatever the pathologies of local democratic processes, the state is not protecting city residents or preventing damaging spillover effects when it prevents a majority-Black city from removing the Confederate statues in city-owned parks. State officials are not fixing a political process defect when they threaten to withhold funds from a city that seeks to reduce its police budget and shift those monies to social services. And the state is not solving a political process problem when it denies local authority to institute an indoor masking requirement. In all these instances, and in many others, state officials are not solving but creating political pathologies; they are in all these cases acting in a decidedly “counter-majoritarian” fashion.
Over 100 years ago, the resistance to city power was already outdated. It is more so, now, when cities are the dominant economic, political, and social actors in their regions, states, and nations. Indeed, any fair-minded evaluation of the nature of local legal authority today would have to conclude that the balance between state and local power simply does not reflect the role that local governments play in contemporary governance. The Principles’ model home rule provision provides a basis for resetting the state-local relationship to create a new equilibrium in places where local responsibility is not matched by local authority.
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