From climate change to the global economy, cities are shouldering a greater burden than ever before, but they lack the authority they need to govern effectively and solve problems. Professor Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law, and Faculty Director, Urban Law Center, argues that home rule—the legal principle that gives local governments the power to act—must change to meet the needs of the 21st century. We spoke with Professor Davidson about this bold idea for reform.
What is home rule?
Home rule is what lawyers call the legal authority that cities have. It’s an idea that really flowered in the Progressive Era in the late 19th century. The first state in the country that formally adopted a system of home rule was Missouri in 1875, and St. Louis was the first city in the country to have formal home rule. This was an era of tremendous reform—and also an era of phenomenal urban growth—and there was a sense that we had to get urban governance right. So, rather than let states tinker day-to-day with the mechanisms that drive urban governance, cities had to grow up and run themselves.
In 1953, the American Municipal Association (AMA), the predecessor organization to what is now the National League of Cities (the largest trade organization for local governments in the country) launched a reform effort to look at home rule in the post-World War II era. They promulgated model constitutional language on home rule that was widely adopted in the following years, but the time has come to look again at this issue.
What’s changed since the 1950s?
The basic bargain in the 1953 model was that unlike earlier versions of home rule that tried to discern specific areas of distinctly local or municipal affairs, the AMA model recognized that local governments are handling all sorts of things and we can’t really decide as a matter of policy which area should be local or which should be state. So, we’re going to assume, as a default matter, that local governments should have the authority to act. But, we’re going to reinforce that with essentially unreviewable authority at the state level to override, to shape, or to preempt local power when the state decides that it’s a matter of statewide interest. Rather than courts trying to decide what is local and what is state, if the state decides that it’s a matter of statewide concern, the state’s got to make that decision. And that more or less worked for a long time.
But, over the last decade and a half, we’ve had a real breakdown in that relationship in states all over the country. There’s a new wave of preemption of cities by states that is much more targeted, much more partisan, and increasingly punitive. So, states are now removing local power in public health, in workplace safety, in the environment, in firearms, and a whole broad range of policy areas. Often, there’s a partisan tinge to it, and the fights are getting more polarized.
Also, in the last 67 years, the role of cities has changed pretty significantly. Cities are now the engine of economic development in the United States. They’re also on the front lines of everything from pandemics to climate change to economic inequality. Cities are taking on much greater responsibility than they were tasked with 67 years ago, when the AMA promulgated its earlier model. And, they’re doing so in the face of all of these headwinds from state after state.
So, how does home rule need to adapt?
Right now, there’s a fundamental misalignment between the needs of local governance and the legal systems that protect that local space for democracy. And, so the National League of Cities and an organization called the Local Solutions Support Center, a hub for advocates for local democracy, convened a group of law professors, akin to what the AMA had done in the run-up to the 1953 model’s publication. I led a team of excellent local government scholars, and we asked ourselves, what’s working well in home rule? What models are out there that that that actually have aspects that we really should capture and replicate? And then what’s not working well? What do we need to fix? And, what are the challenges that we’re seeing in the current environment?
The vision for home rule the team developed really turns on four key concepts. The first idea is that the 1953 reform mostly got it right, when it comes to the basic question of what local governments are competent to do. We need to reaffirm and reinforce the basic default—that cities should be able to tackle the full range of problems they’re facing.
The second principle is that we need to pay particular attention to fiscal authority. One of the things that has changed most significantly since 1953 is that cities all over the country are facing perennial fiscal distress. And part of that is because of the rise of state tax and expenditure limitations like Proposition 13 in California. This movement has hampered the ability of local governments to meet the resource needs they have. And then you have places—like in Flint, Michigan—where deindustrialization has hollowed out whole economies. We don’t have a system that can address the radical inequality that local governments have. So, states need to empower local governments when it comes to fiscal decisions. If systemic inequality means that local governments can’t solve their problems, the states actually have to take affirmative steps to ensure that every local government has some baseline of capacity to meet the needs of their citizens.
The third principle is that we need to come up with a new mechanism for balancing when states can appropriately intervene. If you have a statewide housing crisis like California does or there’s some question of protecting a regional watershed and it can only be done at the state or regional level, it’s important that states be able to act the way they’ve always been able to act. But, right now, states in most parts of the country have almost unreviewable authority to reorder local power, and there should be a different approach. So, we propose in this model constitutional article something akin to heightened scrutiny in federal constitutional law—which says that states can act, but they have to do so explicitly, to serve a substantial state interest, and that a state can only prevail if their action is narrowly tailored to that interest.
The final principle is that there should there be the greatest protection for how local governments structure their own democracy. This might involve choices about having a strong mayor versus a weak mayor, or choices about how local governments oversee their personnel or voting. So, this last principle says that choices about the actual mechanics of governance should generally rest with cities. There are going to be circumstances in which the state can override local democracy, but the state should need to have a compelling reason, and that should be narrowly tailored.
These are great ideas, but how do they get put into action?
When you look to earlier eras constitutional reform, there were two pathways for change. One was that sometimes you would get citizen referenda to change state constitutions. And, states all over the country change theirs unlike the federal Constitution, which we’ve changed very rarely. Or, you could have a constitutional convention, which is another pathway. These are used much less frequently in the current environment, however.
Given that, we hope what this project can do is spark a conversation, and some of these changes can be made statutorily. The idea is really to begin to engage in a kind of graduated way, and if you can find appetite for change, even incremental steps, that builds an appetite. For more ambitious change, if you can find a state that’s willing to move more quickly, maybe that inspires other states to move.
What does the coronavirus outbreak mean for the balance of power between cities and states? Could there be long-term consequences for home rule?
The coronavirus crisis has underscored the vital importance of every level of government working together; indeed, the occasional glimmers we’ve seen of federal, state, and local coordination have been heartening. But, the crisis has also made distressingly clear what happens when that coordination breaks down. In several states, governors have blocked the efforts of mayors to protect their populace through local, targeted shelter-at-home and closure-of-non-essential business policies, creating grave public health risks. We did not need a new argument for the importance of empowering local governments to solve the challenges their communities face, but the pandemic has sadly provided one.