ANNEXATION'S LONG GOOD-BYE.

• Author: Shoked, Nadav

Introduction 740 I. First Act: Nineteenth-Century Northern Life and Death 745 II. Second Act: Postwar Southern Afterlife 752 III. Final Act: Twenty-First Century Ultimate Demise 759 IV. A Nuanced Normative Legacy 764 Conclusion 770 INTRODUCTION

We are living through the final tightening of American cities' legal boundaries. Cities extend their boundaries through the legal tool of annexation. In this fashion, they grow to encompass outlying areas. Starting in the early 2010s, however, the few states that had still allowed cities to easily exercise annexation powers began removing these powers. (1) As a result, city boundaries can almost nowhere now shift outwards as easily as they could in earlier decades and centuries. What motivated this recent, and conclusive, turn against annexation?

One appealing possibility is to view the reform to annexation laws as forming part of a broader statutory attack on cities. Anti-city state measures normally take the form of preemption. The state adopts laws that remove powers from the local government, ban certain local acts, or overrule city decisions. Recent such laws include limitations on local civil rights measures, (2) on certain forms of local taxation, (3) on pandemic local masking mandates, (4) on local gun regulations, (5) or on the local power to refuse to cooperate with federal immigration authorities (6) (or on the local power to commit to such cooperation). (7) Other examples include state dictates of educational curriculum to local schools or of disciplinary procedures to local police forces. (8) As these examples illustrate, clear political undertones often mark preemption: a state legislature that is of one political persuasion will curtail the ability of cities that are of the opposite persuasion to act on their distinct political preferences. It is thus unsurprising that these efforts proliferated over the past decade or so. Following the 2010 midterm elections, conservative Republicans took control of many state legislatures, including in states that are home to major cities with liberal Democratic majorities. (9) A new era of particularly aggressive preemption of local powers had dawned. Commentators aptly christened it the "new preemption." (10)

Three states that embody the pertinent political dynamics are North Carolina, Tennessee, and Texas. (11) As the three proceeded to preempt liberal major cities' powers, adopting some of the most famous (or infamous) anti-local powers laws in the nation, they also curtailed those cities' annexation powers. (12) Like their (and other states') preemption laws, their annexation reforms were often couched in politically conservative terms of protecting individual property rights against encroaching local governments. (13) The developments materialize as perfectly in line. The new annexation laws were one component of the broader new preemption agenda. (14)

But unlike the new preemption, there was nothing particularly new about the "new" annexation regime these states introduced. When North Carolina, Tennessee, and Texas acted in the 2010s to curb annexation, they did what other states, mostly in the Northeast and Midwest, had already done a century or more earlier. (15) Annexations to major cities in the North (and California) had mostly ground to a halt in the early twentieth century. Southern states, in retaining extensive city annexation powers throughout the twentieth century, were outliers. This Essay argues that by finally shedding their status as such in this past decade, states like North Carolina, Tennessee and Texas were following not just contemporary political currents, but also traditional economic imperatives that had earlier generated these same reforms elsewhere.

An easy-to-ignore fact is that an embrace or rejection of cities' power to annex does not only effectuate a pro- or anti-city sentiment. It also contemplates financial factors and serves certain economic interests. The financial factor most germane to annexation dynamics is the cost relevant communities must expend to acquire vital infrastructure--mostly water. At different stages of development within a metropolitan area, these costs can make annexation more or less appealing to the different parties whose interests dictate such decisions. This Essay tells the story of the evolution of annexation law --its Northern heyday and decline, its Southern afterlife, and that afterlife's very recent conclusion--as a story of cycles of development. This retelling of the history of annexation provides a more nuanced description of the American law of annexation as it stands in 2023 -- better than the one that simply reads the curbing of annexation powers as part of the straining of state/local relationship in our hyper-partisan times. (16)

The new focus also presses a reassessment of the common normative attitude toward the American law of annexation. For many, annexation's Northern demise has been associated with the weakening of major cities. (17) By rendering cities practically incapable of annexing surrounding developing areas, the law facilitated suburbanization. (18) Seen in this traditional light, when southern states now target cities' annexation powers, they are not solely acting on blunt political biases, but also instituting troubling metropolitan policies. (19)

While not unappealing, this argument still has an obvious flaw. It implies that up to this past decade when their annexation powers were finally curtailed, southern cities were able to avoid the century's suburbanization drive, or that drive's detrimental effects on inner cities. That, of course, has not been the case. Few would describe Charlotte, Dallas, and Memphis as idyllic locales left immune to the urban malaise that had afflicted other American centers in the twentieth century. This reality should lead to questioning some's conviction that annexation powers will ameliorate inner cities' plight. (20) Annexation's champions stress that by expanding the city's sphere, annexation enlarges its rights: to regulate and to tax. But annexation also enlarges the city's duties: the city must now provide services to new areas. Annexation generates costs for the city. (21) Due to such costs, its intuitive attractiveness notwithstanding, annexation is highly unlikely to, always, in all circumstanes, be in a city's best long term interests.

In the specific adjustments they make to annexation practices, the new laws often force parties to take into account these costs. Indeed, some of them explicitly isolate infrastructure costs as the key factor determining whether annexation is allowable in a given case. (22) When read and analyzed in detail, the new annexation laws show themselves as much more nuanced than the new preemption laws. Most commentators (rightly) criticize the new breed of preemption as weakening cities, especially major cities, in an unprincipled manner. (23) The new annexation laws are different. They do curtail powers cities still held in the South--but they can also empower cities, show concern for poor residents, and promote effective regional planning. Undoubtedly, partisan interests and anti-urban biases provided some of the motivation for their enactment, especially in the South. But however irrational and lamentable the intent, the resulting legislation at times can be quite rational and beneficial.

To provide this better understanding of recent reforms to annexation laws, and through them, of the law of annexation in general, the first three parts of the Essay proceed chronologically. After explaining the legal function of annexation, Part I reviews the well-known story of the rise and fall of annexation practices in the Northeast, Midwest, and California during the second half of the nineteenth century and the opening decades of the twentieth. (24) Part II discusses how then, in the twentieth century, annexation moved to thrive in the South. (25) It attributes this trend to the different development patterns in the South and to such patterns' effects on the relative financial benefits of annexation. (26) Part III turns to review the laws from the second decade of the twenty-first century that finally put annexation to rest everywhere. (27) It shows how, viewed through the prism of annexation's relative costs, these laws implement nuanced, and often (though, of course, not always) good, policy. (28) These findings lead to Part IV's concluding normative remarks urging commentators to temper their celebration of annexation. (29)

1. FIRST ACT: NINETEENTH-CENTURY NORTHERN LIFE AND DEATH

   Boundaries are a key attribute of government and community. They define the government's sphere of power and identify who forms part of the community. For most sub-federal governments, those boundaries are rather static. States' boundaries were mostly set when they entered the union. (30) Counties' jurisdictions are also remarkably stable, so much so that commentators quip: "the legislature may create municipalities, but only God can create a county." (31)

   As the adage implies, municipalities, such as cities, are different. While counties are there, cities, as far as the law is concerned, are created. This means that with very few exceptions all land in the United States forms part of a county (the term may differ across states: borough, parish, etc.) but not all land forms part of a city. Even if untrue as a matter of history, conceptually, at first land forms part of a county and then, through a certain legal act, it can also become part of a city. To become a new city, an area must legally "incorporate." (32) The incorporation act inevitably also details the boundaries of the area that will form part of the newly incorporated city. These city boundaries, originally set when the city incorporates, can later shift, however. Post-incorporation, more area can be added to a city; conversely, existing area can be subtracted. The former act is known as annexation; the latter as...