Have cities abandoned home rule?

• Author: Su, Rick

Introduction 181 I. Why Cities and Home Rule Matter 183 A. The Municipal Revolution and the Backlash Against It. 183 B. The Question of Legal Authority and the Rise of Home Rule 189 C. The Plight of Home Rule 193 II. Cities and their Relationship to Home Rule 195 A. Stewards of Home Rule 196 B. Shunning Home Rule 198 1. Cities and the Law of Home Rule 198 2. Cities and the Politics of Home Rule 203 3. Undermining Home Rule 206 C. Reconsidering Home Rule 208 III. How Cities Might Shape Home Rule 210 A. Legal Push and Litigation Strategy 210 B. Political Mobilization 212 C. Concerted Effort 213 Conclusion 215 INTRODUCTION

Home Rule grants cities the power to act without state authorization. (1) It also provides them with protections from state interference. (2) The scope of these powers and protections have long been unclear. (3) But, given recent events, one might assume that a renewed debate over Home Rule is fast approaching. Cities today are increasingly at the forefront of controversial policy disputes, addressing a host of issues from the minimum wage and paid family leave, to immigration and LGBT rights. (4) At the same time, state governments seem more determined than ever to overturn these local efforts and limit the kinds of matters that cities can address. (5) A similar set of circumstances sparked the Home Rule movement at the turn of the twentieth century, in which cities and their supporters fought for greater municipal independence from the yoke of state control. (6) At the start of the twenty-first century, will Home Rule once again take center stage?

Despite the growing interest in urban policymaking, there are few signs that Home Rule is making much of a comeback. Indeed, if anything is striking about the contemporary state of Home Rule, it is how rarely it comes up at all. Home Rule is widely ignored in popular media. It is largely unfamiliar to the general public. Even the cities themselves seem indifferent. As they widen their regulatory efforts in the face of state opposition, cities today are often reluctant to invoke Home Rule as a legal basis for their actions. As they protest their mistreatment at the hands of states, few are framing their argument around Home Rule in their political appeals. In many instances, it is actually the cities themselves that have weakened--either directly or indirectly--the Home Rule authority that they had once fought so hard to secure.

Legal scholars have long complained that state courts and legislatures have undermined Home Rule and circumvented its protections. (7) But have cities abandoned Home Rule as well? Home Rule can be broadly conceived as both a bundle of legal rights and a set of political considerations. Yet the legal structure of Home Rule also relies on cities to take the lead in shaping its role and development. For Home Rule to be meaningful as a set of legal rights, those rights have to be consistently exercised and zealously defended. For Home Rule to be an effective political safeguard, its underlying values have to be vigorously articulated and regularly invoked. There is no shortage of proposals today on how Home Rule might be revived, reclaimed, or reformed. (8) But none of these are likely to succeed if cities remain on the sidelines.

This essay examines the future of Home Rule. Unlike other accounts, however, the focus here is on the part of the cities themselves. The central claim is that cities are crucial in shaping the role and development of Home Rule. But the main concern is that cities today do not appear interested in doing so. To be sure, sharp disagreements about the desirability of Home Rule persist, especially when it comes to local involvement in policymaking. (9) Given its limitations, there may be good reasons why cities seem to be turning away, especially when alternative avenues to power are available. But there are also consequences when cities fail to take Home Rule seriously. These consequences extend well beyond Home Rule's prospects; they also strike at the very heart of how we think about the role of cities in American policymaking.

These arguments are set out in the following three Parts. Part I focuses on the role of Home Rule in an era of municipal activism. More specifically, it shows how recent city-state tensions over substantive policies raise serious questions about the standing of Home Rule today. Part II examines the relationship that cities have with Home Rule. While cities play an important role in shaping the legal and political development of Home Rule, thus far they do not seem deeply committed to this role. Part II provides several explanations for why cities seem uninterested in Home Rule, and why this may be a troubling development. Part III proposes some ways in which cities might--both individually and collectively--contribute to shaping the development of Home Rule. These proposals are drawn from how advocates have shaped legal developments in other fields. A brief conclusion follows.

1. WHY CITIES AND HOME RULE MATTER

   1. The Municipal Revolution and the Backlash Against It

      We are in the midst of an urban revolution. Enthusiasm for federal policies dominated much of the twentieth century. The "federalism revival" of the 1970s and 1980s shifted the balance towards states. (10) As we begin the twenty-first century, however, there is growing interest in the role of cities. For generations, cities were viewed as the source of American's most vexing challenges. Today, however, they are increasingly cast as the solution to many of our nation's most pressing problems. On social and economic issues, cities are celebrated for their innovative and forward-thinking policies. (11) In an era of gridlocked partisanship, local politics are hailed as a glimmer of hope amid America's democratic dysfunctions. (12) It may have once been common for policymakers to wonder whether cities were capable of governing themselves. Now influential thinkers are openly asking whether it would be better if "mayors ruled the world." (13)

      This enthusiasm tracks the tremendous turnaround that many cities are now experiencing. Cities in the twentieth century were marked by depopulation, poverty, and fiscal distress. (14) Today, many are staging a historic comeback. (15) Interest in urban living is on the rise. (16) Businesses are flocking back into the downtown core. (17) And housing shortages and gentrification have replaced abandonment and blight as cities' central problems. (18) To be sure, the scope and pace of this urban revival is uneven--while Austin leads, Detroit lags. But it is also more widespread than one may think. Alongside the spectacular renaissance of major urban centers like New York City and San Francisco, rust-belt cities like Pittsburgh, Cleveland, and Buffalo are also showing signs of revitalization. (19) If there is greater interest in the role of cities today, it is due in part to the fact that they are once again becoming the cultural, economic, and social centers of American society.

      Cities are not just doing better. They are also doing more. Although political gridlock stalls policy responses at the state and federal level, local policymakers, especially those in America's big cities, have been filling the void. On economic issues, cities have bolstered the push for the fifteen dollar minimum wage and paid family leave, by adopting them as local policies. (20) On social issues, cities led the charge on same-sex marriage and continue to pave the way on protections for the LGBT community. (21) On public health, cities paved the way for the prohibition of trans-fats and indoor smoking, policies only later embraced at the state or federal level. (22) Even on global issues like immigration and climate change, cities are taking a stand. Immigration is hardly a traditional local issue, but cities are enacting a variety of policies regarding the settlement of immigrants and local involvement in immigration enforcement. (23) Global carbon emissions are well beyond the ability of any one city to control, but cities across the world are building the framework for a coordinated response, while nations struggle to reach an accord. (24) Cities may occupy the lowest rung in our federal system. On a growing number of policy issues, however, they have taken the lead in framing the debate.

      The recent municipal activism is fueled by increasing demand from residents for their cities to do more, especially as representatives at the state and federal levels do less. (25) But it is also prompting a backlash at the state level. In recent years, states across the country have responded to municipal activism by passing laws specifically designed to block local regulations. These include preemption statutes that have struck down local laws that raised the minimum wage, (26) granted paid family leave, (27) or imposed residency requirements for certain municipal employees. (28) States are also moving towards so-called "death star" legislation that block cities from regulating entire fields altogether. (29) Pennsylvania, for example, enacted a law that prevents localities from imposing "duties, responsibilities, or requirements" upon any business. (30) Similarly, Texas now forbids localities from regulating "fracking" operations, including through their traditional zoning powers. (31) Further, states have become more punitive in their efforts to stifle local policymaking. Pennsylvania and Florida not only forbid localities from regulating firearms, but specifically authorize individuals and organizations to sue cities and local leaders if they do so. (32) Arizona recently enacted legislation that would withhold state funds from any city that regulates firearms, working conditions, or plastic shopping bags. (33)

      Anti-local efforts also represent some of the most well publicized state laws in recent years. North Carolina's so-called "bathroom bill," for example, prohibiting transgender individuals from using public...