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Have Cities Abandoned Home Rule?

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Have Cities Abandoned Home Rule? University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship 2017 Have Cities Abandoned Home Rule? Rick Su UNC School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the State and Local Government Law Commons Recommended Citation Rick Su, Have Cities Abandoned Home Rule?, 44 Fordham Urb. L.J. 181 (2017). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/138 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Fordham Urban Law Journal Volume 44, Number 1 2017 Article 6 SYMPOSIUM -HOME RULE IN AN ERA OF MUNICIPAL INNOVATION Have Cities Abandoned Home Rule? Rick Su∗ ∗ Copyright c 2017 by the authors. Fordham Urban Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj HAVE CITIES ABANDONED HOME RULE? Rick Su* 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 * Professor of Law, University at Buffalo School of Law; B.A., Dartmouth College; J.D., Harvard Law School. 1. See DALE KRANE, PLATON N. RIGOS & MELVIN B. HILL, HOME RULE IN AMERICA: A FIFTY-STATE HANDBOOK 11-12 (2001). 2. See id. 3. See, e.g., Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643 (1963). 181 182 FORDHAM URB. L.J. [Vol. XLIV 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 4. See infra notes and accompanying text 20-21, 23, 26-27, 34-36. 5. See infra notes and accompanying text 26-39. 6. See infra notes and accompanying text 61-64. 7. See, e.g., GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 51 (2001); Kenneth A. Stahl, Local Home Rule in the Time of Globalization, BYU L. REV. (2016). 8. See, e.g., Stahl, supra note 7; David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2257 (2003). 2017] HAVE CITIES ABANDONED HOME RULE? 183 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. I. WHY CITIES AND HOME RULE MATTER A. 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 9. See, e.g., Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, COLUM. L. REV. 1, 5 (1990); Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 GEO. L.J. 1985 (1999). 10. See generally TIMOTHY J. CONLAN, FROM NEW FEDERALISM TO DEVOLUTION: TWENTY-FIVE YEARS OF INTERGOVERNMENTAL REFORM (2010). 11. See generally Richard Briffault, Home Rule and Local Political Innovation, 22 J.L. & POL. 1 (2006); Paul A. Diller, Why Do Cities Innovate in Public Health? Implications of Scale and Structure, 91 WASH. U. L. REV. 1219 (2014). 184 FORDHAM URB. L.J. [Vol. XLIV 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
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