Reorienting Home Rule: Part 2?Remedying the Urban Disadvantage Through Federalism and Localism

• Author: Paul A. Diller
• Position: Professor of Law, Willamette University College of Law.
• Pages: 1045-1114

Reorienting Home Rule: Part 2 – Remedying the Urban Disadvantage Through Federalism and Localism Paul A. Diller * † Introduction ........................................................................1046 I. Remedying the Urban Disadvantage in the Federal Order ..................................................................................1051 A. States Suffer Urban Disadvantage Too ........................1055 B. Assessing Big-State Immunity to Preemption .............1059 C. Assessing Big-City Immunity to Preemption ..............1062 II. Constitutional Home Rule or “Mini Tenth Amendments” ....................................................................1064 A. Constitutional, or Imperio, Home Rule as a Provider of Immunity to State Override ......................1066 B. Modified Immunity to State Override ..........................1072 III. Constitutional Home Rule as a Remedy for the Urban Disadvantage in State Lawmaking ..........................1077 A. Objections to an Invigorated Imperio Home Rule .......1080 1. An Imperfect Fit with Respect to Issues ................1083 2. Threshold for Immunity .........................................1086 B. Potential Limitations on Constitutional Home Rule ....1093 C. Other Wrinkles: Chronology and Judicial Enforcement .................................................................1094 IV. Can Local Government Bear the Burden of the Privilege of Immunity? ......................................................1096 Copyright 2017, by PAUL A. DILLER. * Professor of Law, Willamette University College of Law. † Note on citations: When not specified, election results come from secretaries’ of state (or equivalent) offices, sometimes obtained through a gathering website like Ballotpedia or David Leip’s Atlas of U.S. Presidential Elections. Unless otherwise noted, population figures come from the U.S. Census and are 2015 estimates. TABLE OF CONTENTS 1046 LOUISIANA LAW REVIEW [Vol. 77 V. Implications at the Federal Level .......................................1100 Conclusion .........................................................................1102 Appendix A. Protection of Lawful Commerce in Arms Act Senate Vote (July 2005) ..............................................1104 Appendix B. States with Some Judicially Protected Home Rule .........................................................................1105 INTRODUCTION The first installment of this two-part Article series illustrated how the federal and state lawmaking processes disadvantage urban areas. 1 That disadvantage accounts for the inability of a president strongly preferred by urban voters, Barack Obama, to accomplish much, if any, of his domestic agenda after 2010. It also explains, at least in part, the one-party domination of the federal government as of 2017. Despite losing the popular vote by almost three million, Donald Trump nonetheless won the Electoral College by a margin of 304–227. 2 Republicans won the total vote for the United States House in 2016 by just a percentage point, yet maintain an ironclad seat majority of 241–194. 3 Finally, in the Senate, despite holding a 52–48 advantage in seats, Republicans represent a minority of the nation’s population. 4 This new, one-party federal government can be expected to 1. See Paul A. Diller, Reorienting Home Rule: Part 1 – The Urban Disadvantage in National and State Lawmaking, 77 LA. L. REV. 287 (2016) [hereinafter Urban Disadvantage]. 2. Hillary Clinton was thought to have won seven more electors’ votes, making for a 304–234 loss, but these seven defected and cast their votes for other candidates, mostly as a protest. See Scott Detrow, Donald Trump Secures Electoral College Win, with Few Surprises, NPR (Dec. 19, 2016, 4:52 PM), http://www.npr.org/2016/12/19/506188169/donald-trump-poised-to-secure-electoral-college-win-with-few-surprises [https://perma.cc/ZUG9-CBRY]. 3. Ballotpedia has the Republicans winning 49.13% of the popular vote and Democrats winning 48.03%. United States House of Representatives Elections, 2016, BALLOTPEDIA, https://ballotpedia.org/United_States_House_of_Representa tives_elections,_2016 [https://perma.cc/JUG3-68U9] (last visited Feb. 13, 2017). 4. See E.J. Dionne Jr., The Minority Is in Charge, PITTSBURGH POSTGAZETTE (Dec. 8, 2016, 12:00 AM), http://www.post-gazette.com/opinion/2016 /12/08/The-minority-rules/stories/201612080063 [https://perma.cc/KS3L-EWFE] (noting that after 2016 elections, Senate Democrats will represent 55.33% of the nation’s population). 2017] REORIENTING HOME RULE 1047 pursue policies that skew toward the rural and exurban voters who formed such an important part of its victory coalition. At the state level, the urban disadvantage has played out vividly in states like North Carolina, where the legislature in 2016 preempted Charlotte’s municipal transgender protections through the “Bathroom Bill.” 5 Other states stand on the precipice of enacting similar preemptive legislation. 6 In other “purple” states like Arizona, Florida, Michigan, Ohio, Pennsylvania, and Wisconsin, the state legislatures have aggressively preempted local authority in numerous important substantive areas, from minimum wage and paid sick leave to gun control. 7 As the first part of this series argued, these policies likely do not represent the views of the median voter in these states, but rather skew toward the preferences of rural and exurban voters. Hence, at least for those with progressive political leanings, local government is often now seen as the most responsive and nimble level of government in the United States and indeed worldwide. From public health and gay rights to climate change and gun control, cities’ activism 5. H.B. 2, 2016 Gen. Assemb., 2d Extra Sess. (N.C. 2016) (preempting Charlotte, N.C., Ordinance 7056 (Feb. 22, 2016)), http://charmeck.org/city/char lotte/nondiscrimination/Pages/default.aspx [https://perma.cc/P78V-KDV4]. The scope of the state preemption law was sweeping. It prohibits not only additional local employment and public accommodation protections of any kind beyond state law, but also any local minimum wage ordinances. Id. 6. David A. Graham, What’s Behind the New Wave of Transgender “Bathroom Bills”? , ATLANTIC (Jan. 9, 2017), https://www.theatlantic.com/politics /archive/2017/01/states-see-a-new-wave-of-transgender-bathroom-bills/512453/ [https://perma.cc/G2Y8-HNZK] (discussing efforts to enact similar legislation in Texas, Virginia, and Kentucky). 7. Purple states—also known as battleground or swing states—are the states that the major candidates in the last few presidential elections have most vigorously contested. See generally Fred M. Shelley & Ashley M. Hitt, Purple States in the 2016 Presidential Election, 13 GEOGRAPHY TEACHER 124 (2016). For a detailed account of state preemption of local minimum wage, paid sick leave, and antidiscrimination laws, see NAT’L LEAGUE OF CITIES, CITY RIGHTS IN AN ERA OF PREEMPTION: A STATE-BY-STATE ANALYSIS (2017), http://www.nlc .org/sites/default/files/2017-03/NLC-SML%20Preemption%20Report%202017-pages.pdf [https://perma.cc/8UEX-4GF8]. Recent prominent firearms preemption laws include Florida’s 2011 law that imposed liability on local officials who enforce gun restrictions beyond those mandated by state law, see 2011 Fla. Laws 109 (amending FLA. STAT. ANN. § 790.33), and Arizona’s similarly aggressive statewide preemption of local firearms regulation in 2016. 2016 Ariz. Sess. Laws ch. 132 (amending ARIZ. REV. STAT. ANN. § 13-3108) (allowing court to impose fines up to $50,000 on cities that violate state law and terminate local employees). 1048 LOUISIANA LAW REVIEW [Vol. 77 where states and the federal government either obstruct action or fail to act can only be expected to increase. 8 In taking on these issues, cities are addressing subjects or using modes of regulation that are not unique to local government. Public health and climate change are hardly “local” issues, yet cities are attempting to regulate these areas even if they are outside any “traditional” municipal domain of regulation. 9 Taking the “urban disadvantage” as a given, this Article posits that local lawmaking in urban areas may serve as a modest corrective and shift the cumulative local, state, and national legal framework back toward the views of the national median voter. Were local, state, and federal lawmaking merely layers of sediment, the ability of local lawmaking to serve as a corrective to state and national deficiencies would be limited primarily by matters of scale. For instance, if residents of urban areas prefer stricter gun control, as most do, they could simply add such restrictions to the pre-existing national and state regulatory layers. The effectiveness of this extra layer of regulation might be limited by the ability of guns to slip through city and state lines, but cities would at least be able to impose a more preferable regulatory regime within their own boundaries. 10 Cities’ limited geographical jurisdiction, however, is not the only or even primary limitation on the effectiveness of their regulatory choices. Rather, the frequent preemption of city authority by Congress and especially state legislatures prohibits local governments from layering or reducing additional regulation when they see fit. This preemption has 8. See Kenneth A. Stahl, Local Home Rule in the Time of Globalization, 2016 BYU L. REV. 177, 181–82; Paul A. Diller, Why Do Cities Innovate in Public Health?, 91 WASH. U. L. REV. 1219 (2014) [hereinafter Why Innovate?]; Matthew J. Parlow, Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of Federalism, 17 TEMP. POL. & CIV. RTS. L. REV. 371, 375–82 (2008); Richard Briffault, Home Rule for the Twenty-First Century, 36 URB. LAW. 253, 259–60 (2004). 9. For skepticism of the notion that cities even have a “traditional” policy domain, see Why Innovate?, supra note 8, 1222–23. As an example, consider civil rights efforts in...