The Dilemma of Localism in an Era of Polarization.

Author:Davidson, Nestor M.

ESSAY CONTENTS INTRODUCTION 957 I. LOCALISM'S RENEWED URGENCY 963 II. REVISITING THE DILEMMA OF LOCALISM 974 A. The Case for Local Empowerment and the Challenge of Parochialism 975 B. A Typology of Extant Approaches 979 1. Ecumenical Localism 979 2. Skeptical Localism 980 3. Functionalist and Formalist Localism 981 III. CENTERING THE NORMATIVE IN LOCALISM 984 A. Elevating Normativity in the Structure of State/Local Conflicts 984 1. The Value in Elevating Normative Considerations to Discern the Boundaries of Local Authority 984 2. Sources of Normative Content--Of the Interplay of Individual Rights and General Welfare 986 3. The Jurisprudential Model in Practice 993 B. Objections from Indeterminacy and Judicial Role 996 CONCLUSION 1000 INTRODUCTION

On August 28, 2015, St. Louis enacted an ordinance that would have raised the minimum wage in the city to $11 per hour. The move sparked a protracted fight with the Missouri General Assembly over state preemption that included an en banc Missouri Supreme Court decision (1) and a legislative override making clear that Missouri's cities cannot regulate minimum wages. In the end, the state prevailed, rolling back wage increases that had already begun to change the economic and social landscape of the city. (2)

The fight between St. Louis and Missouri over the minimum wage is hardly an outlier today. Once-neglected questions concerning the state-local relationship and the basic role of cities and other local governments in our federal system have recently taken on renewed urgency. (3) Traditionally, states have invoked their power over local authority periodically to vindicate concerns about statewide regulatory uniformity or to address particularly significant interlocal conflicts. As rising political and cultural polarization exacerbates long-standing urban/rural conflicts, however, progressive cities find themselves increasingly at odds with conservative state legislatures. The state-level redistricting that followed the 2010 census, which accelerated unified partisan control in many states, intensified this conflict, contributing to a sharp increase in state intervention in local policy making. (4)

States in recent years have preempted local initiatives and removed local authority across a wide array of policy domains. (5) Charlotte, for example, found itself in a conflict that garnered national attention when North Carolina barred the city's effort to add LGBT protection to its municipal antidiscrimination ordinance. States have overridden local laws addressing not just minimum wages, but also paid sick leave, fair scheduling, and other employee protections. States are also barring local policies that welcome immigrants and protect public safety by facilitating law enforcement cooperation with immigrant communities in so-called sanctuary cities. Similar conflicts are playing out in public health, housing, environmental protection, firearm safety, the sharing economy, broadband, and other areas.

Even more significantly, state oversight is turning punitive, with states threatening to withdraw funding from local governments and opening local governments to novel forms of liability over policy disputes. (6) States are now even exposing individual local officials to penalties--including removal from office, civil fines, and criminal sanctions--in preemption conflicts. (7) To call this a sea change in state-local relations would be an understatement.

Local governments and their advocates have hardly acquiesced, mounting a series of hotly contested lawsuits to defend local autonomy and local democracy. This burgeoning litigation challenging the new wave of preemption involves a variety of structural doctrines at the core of the state-local relationship, including home rule and state constitutional bans on special legislation. Recent cases have also involved federal constitutional claims, including equal protection, due process, and the First Amendment, reflecting the individual rights at issue in many of these conflicts. Somewhat surprisingly, given their nominal lack of formal authority, local governments have prevailed in a not-insignificant number of cases. (8)

At the fulcrum of these renewed conflicts is a critical question that is the focus of this Essay. Current advocacy for local governments is often motivated by interest in protecting local policies that advance equity and inclusion. The legal arguments advocates invoke in these conflicts, however, could just as easily be turned against the very values they are defending through local autonomy. After all, as much as local governments can advance economic fairness, social justice, and policy innovation, they can--and often do--use their power as a tool of exclusion, reinforcing racial and socioeconomic inequality.

This is the double-edged sword of localism: local empowerment can be used for desirable as well as pernicious ends. This dilemma raises the critical theoretical and doctrinal question whether it is possible to craft a coherent, principled approach to local legal power justified by the traditional values associated with localism--preserving the space for local democracy, community, and participation, as well as fostering local innovation and the general benefits of political decentralization--but addressing the worst aspects of local parochialism when those values fail. (9)

It only takes a few examples to put the question in concrete terms. Is it possible to construct an approach to localism that protects Bloomington's desire to enact inclusionary zoning from preemption by Indiana, while still vindicating New Jersey's restrictions on local governments that use zoning to bar low-income people and people of color from a community? Is there an approach that can bar Texas from enacting a punitive anti-sanctuary-city law, but justify Illinois's prosanctuary laws? The same question can be asked about Ohio's preemption of a Cleveland law mandating local hiring in public projects versus California's restriction on the City of Vista's desire to avoid paying prevailing wages on public construction projects. Similar examples abound--indeed, they are baked into the very nature of contemporary localism.

Reconciling these crosscurrents is not particularly difficult if the goal is simply to vindicate policy preferences. It is perfectly consistent to support or reject local autonomy in the service of any particular outcome (such as more affordable housing or fewer regulatory restrictions on development), giving contingent support for an allocation of authority that tends to achieve that outcome. But the task is more challenging if the search is for a set of structural principles that can be applied consistently to delineate the allocation of state/local authority in ways that provide tools for advocates and legal actors to reflect the true stakes of the conflicts at issue. (10)

This question is hardly new in the literature, even if it has taken on new salience and a distinctive partisan valence. (11) Scholarly attempts to grapple with the dilemma of localism have fallen along several general lines. (12) Some scholars have argued in favor of subsidiarity--the concept that authority in a political order should rest with the level of governance closest to those governed--without significant qualification, taking the position that the benefits of devolution and decentralization outweigh the costs of local empowerment. This approach has the virtue of consistency, but ultimately pays insufficient attention to the risks of exclusion and other local threats to fundamental values. Other scholars have advanced approaches to calibrating the balance of state and local power that look to the states to strike the right balance or that emphasize more functional or formal grounds of decision. These perspectives likewise offer much wisdom, but the states in the present environment are too often untrustworthy stewards of their oversight authority, and traditional functional and formal approaches obscure the underlying nature of the conflicts at issue. (13)

This Essay argues for a different approach. It takes as its premise the inherently normative nature of the allocation of power in the states. This normativity is implicit in much of the discourse--and occasionally rises to the surface in the jurisprudence--but it is important to be forthright about the unavoidability of making often deeply contested normative choices, rather than applying nominally functional or formal approaches, in structuring local power. (14)

The critical task then becomes discerning the appropriate content for that normativity. The Essay argues for drawing on the intersection of two areas of state constitutional doctrine. The first is state individual-rights provisions, from which courts and litigants can derive operative values. The existence of these provisions demonstrates that states are not, in fact, indifferent to considerations of equity, inclusion, and similar concerns. (15) Indeed, nearly every state has some form of equality norm enshrined in its state constitution. (16) Many states, moreover, have provisions that advance education, social welfare, environmental protection, and similar commitments, however thinly realized they may be in practice. (17)

A second, distinct source of normative content for localism lies in the often-ignored concept that the general welfare of the state is inherent in the delegation of legal authority to geographically bounded local communities. This structural principle has the potential to be deeply normative, given that the inquiry into what constitutes the general welfare of a state transcends the interests of any locality. Taking this concept seriously would mean that state delegation carries inherent limits on the ability of local governments to wall themselves off from the larger context in which their policies operate. Thus, the logic of home rule--even in states that have recognized strong protection for...

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