Reorienting Home Rule: Part 2–Remedying the
Urban Disadvantage Through Federalism and
Localism
Paul A. Diller*†
TABLE OF CONTENTS
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.
* Pr ofessor 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.
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: Par t 1 –The Ur ban
Disadvanta ge in National and State Lawmaking, 77 LA. L. REV. 287 (2016)
[hereinafter Urba n 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 POST-
GAZETTE (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. Da vid A. Graham , W hat’s Behi nd t he New Wave of Trans gender
“Bathroom Bills”?, ATLANTIC (Jan. 9, 2017), https://www.theatlantic.com/politics
/archive/2017/01/states-see-a-new-wave-of-tran sgender-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, Pur ple
States in the 2016 P residential 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 i mpose
fines up to $50,000 on cities that violate state law and terminate local employees).