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The past two decades have celebrated the idea of “the city resurgent.” Cities in the United States and around the world have seen their populations stabilize and their wealth increase. Moreover, a new and emerging city-led urban liberalism has been touted as our best hope in the face of regressive and reactionary policies at the state and national level. The city “triumphant” has been held up and lionized, its progressive possibilities encouraged.
The central problem for U.S. cities is their states.
But despite this recent narrative, U.S. cities remain relatively weak institutions, operating within the contours of a state-based federalism that severely limits their policy choices. In the last five years, for instance, at least twenty-five states have adopted laws that preempt local minimum wage ordinances. States exercise plenary—and often punitive—power over their political subdivisions, and limited legal defenses are available to cities faced with overweening state and federal governments. Federalism in the United States is deeply anti-urban.
In the late twentieth and early twenty-first centuries, the overwhelming dogma argued that cities would forever be limited by the mobility of capital. This is the idea that cities have no choice but to adopt pro-market policies and pursue alliances with powerful business interests in the pursuit of growth. But today, as the city’s economic constraints recede, it is their institutional constraints that loom ever larger. These political limits on cities are very real, and significant reform efforts are required for cities to challenge them. Cities, in other words, can govern only if we let them.
It might sound incongruous, but the central problem for U.S. cities is their states. States determine the extent of city authority, and state legislatures have not been shy about preempting or overriding local laws with which they disagree. In the last decade, often in direct response to city regulatory efforts, state legislatures have adopted an avalanche of preemptive legislation aimed at “reining in” wayward cities.
Perhaps most famously, North Carolina adopted a “bathroom bill” to override Charlotte’s local transgender non-discrimination ordinance. But that state law also preempted all municipal minimum wage, contracting, employment discrimination, and public accommodations ordinances as well. And it was not an isolated incident. Michigan has also adopted legislation that prevents cities from regulating paid sick days, wages, scheduling, and hours and benefits disputes. And the Arizona legislature has a law that authorizes the attorney general to investigate local ordinances that conflict with state law and to withhold state funds in cases of conflict. Similarly, Texas has adopted SB4, which bars local “sanctuary city” policies, threatening civil penalties and removal of local officials who adopt or even “endorse” such policies. Openly disdainful of municipal regulation, Texas Governor Greg Abbott has stated that he favors a “broad-based law by the state of Texas that says across the board, the state is going to preempt local legislation.”
State preemptive legislation is possible because even in states that grant their cities some home rule authority, that authority is limited to initiating local legislation in areas where the state has not already legislated. Home rule provisions in state constitutions do not generally grant cities immunity from contrary state legislation, except in a few states and in limited circumstances.
In the past decade, state legislatures have adopted an avalanche of preemptive legislation aimed at ‘reining in’ wayward cities.
Led in part by the powerful American Legislative Exchange Council (ALEC), states have been aggressive, and increasingly, state preemption takes a punitive form. A number of states have preemptive firearms statutes that authorize private parties to sue local officials for violations. Some state statutes threaten the withdrawal of state funds or the removal of local officials—as in Arizona and Texas. More common are state statutes that simply remove local authority to act. For example, the Florida legislature has adopted statutes preventing local governments from regulating smoking, fire sprinklers, nutrition and food policy, the sale or use of polystyrene products, hoisting equipment, beekeeping, fuel terminals, wireless alarm systems, paid sick leave and other employment benefits, moving companies, biomedical waste in city landfills, plastic bags, milk, and frozen desserts.
In addition, Florida and other states are considering blanket preemption laws that bar localities from regulating “any business, profession, and occupation unless the regulation is expressly authorized by law.” A more far-reaching proposal is to preempt the local “regulation of matters relating to commerce, trade, and labor.” These blanket deregulatory statutes simply deny localities all powers in a particular sphere rather than advance a specific state policy.
The hostility to municipal regulation and the rise of state law preemption reflects a concerted string of strategic victories by deregulation-seeking interest groups. But it also reflects a structural bias against local government—in particular the continuing political and policy hostility toward city government.
Why the hostility?
First, let’s look at the politics. While Republicans have increasingly become the anti-city party, populist anti-urbanism has a long history. The idea that cities are dangerous to the republic was common well before Donald Trump inveighed against sanctuary cities and described inner cities as burning, crime-infested disasters. City government has long been associated with corruption and mismanagement; so too has the city been associated with the dangers of mass democracy and racial, religious, and ethnic mixing.
Even progressives blame the city for a range of social ills. At midcentury, urban renewal was offered as a solution to urban poverty, while current reformers suggest moving city dwellers out of urban neighborhoods and into affluent suburban ones as a means of inducing upward mobility. Bulldozing the city or moving people out of it has generally been the twentieth century’s response to poverty and racial segregation.
That response can be contrasted with a strategy of actually giving cities the capacity to address their own problems. In the early part of the twentieth century, the home rule movement sought to do so. Cities gained some degree of independence from their state legislatures, which had regularly adopted “ripper bills”—state statutes that transferred control of specific municipal responsibilities or entire municipal departments to state agencies or officers, or that simply removed local elected officials altogether.
Home rule provisions in state constitutions do not prevent the modern-day version of rippers, however. Preemptive legislation today leaves municipal functions in place, but removes practically all local government authority to regulate or redistribute. Home rule mostly protects the authority most coveted by the suburbs—namely the suburbs’ ability to zone and tax for local schools. Any broader exercise of municipal power—especially in areas cities need—is subject to state legislative whim. And for institutional and political reasons, those legislatures are likely to oppose the exercise of city power.
Is it time for a new home rule movement?
After all, state lawmakers conceive of themselves as representing local constituencies—as do many members of the U.S. Congress. Because city leaders do not enjoy a monopoly on local representation and cities qua cities are not represented in legislatures, state officials see little reason to act with restraint as long as they are being responsive to their particular slice of the electorate. States and state officials are in competition with cities and city officials for political power and economic spoils. Intervening in city affairs is attractive to state office holders because cities often contain the bulk of a state’s population, or its leading civic, infrastructural, or business assets.
Moreover, cities have become particular targets because municipal decisions are more likely than other local governments’ decisions to invite opposition from statewide constituencies. And because cities often simply need more government than do rural or suburban jurisdictions, the ideological distance between non-city legislators—who may resist the expansion of government—and city legislatures is often greater.
This political and structural bias toward state intervention is exacerbated by other features of our constitutional system. Because of the malapportionment of the U.S. Senate, Congress tends to favor low population, rural states over high population, urban ones. State legislatures are constrained by the dictates of one-person-one-vote, but the use of gerrymandering at the state level generates a similar bias. The extreme political sorting of the U.S. populace—with cities overwhelmingly Democratic and rural and exurban areas overwhelmingly Republican—means that lines can be drawn so as to ensure Republican domination of state legislatures even when Democrats win more votes statewide.
How can cities govern despite these significant institutional constraints?
Much of the conventional late twentieth-century urban literature was animated by the notion of city limits: the idea that a city’s fate is mostly governed by powerful market forces. Because of the city’s economic limits, this argument goes, progressive tax and spend polices can only be pursued effectively at the state or national level. Cities have no choice but to converge on the same narrow set of capital-friendly local policies—business subsidies, low taxes, and minimal regulation.
The dogma of economic limits continues to be influential. But one benefit of the urban resurgence is that it has shown that cities have more room to maneuver. The assumption that pro-market policies are necessary for economic growth is contradicted by the increasing prosperity of cities that have not substantially changed their tax and spend policies to make them more business-friendly. And the adoption of successful redistributive policies such as the local minimum wage has called into question the conventional narrative of the economically limited city.
This, in turn, invites attention to non-economic constraints on city power. If cities exercise more agency than the deterministic, economically limited city account allows—and evidence increasingly shows that to be the case—then the solution to the problem of city power is less economic than it is legal and political. This realization does not make solutions any easier, but it at least makes the problem of city power tractable.
Cities are exercising more agency than the economically limited account allows, which suggests the solution to their power problem is less economic than it is legal and political.
Indeed, in the last decade, cities have successfully adopted a range of policies—local living wages, health-care mandates, labor and employment protections, family leave policies, local hire laws—that do not necessarily conform to the local chamber of commerce’s growth agenda. They have done so by exercising power consistent with their existing legal authority but also by operating in the interstices of that authority.
As to the former, cities have been willing to litigate when their power to adopt legislation has been challenged, at least in cases where there is not preemptive state legislation. In many states, city authority is restricted to matters of local concern and cannot trench on the state’s private law—that is, cities cannot generally regulate in areas such as contract, tort, property, or domestic relations. Whether a rent control ordinance or a minimum wage law violates those restrictions is determined by a state court.
In areas where cities cannot directly regulate, they have sought to do so through other means. For example, many cities have embraced community benefit agreements (CBAs), which allow the city to regulate incoming development through contractual arrangements. CBAs can impose a host of labor and employment law standards on a specific developer that federal or state law would not permit the city to impose through general ordinances. In other words, CBAs permit cities to regulate piecemeal what they cannot regulate wholesale.
Cities have also used their contracting power to demand that suppliers comply with certain minimum standards. When acting as participants in the marketplace, cities can often adopt more stringent workplace, employment, and sourcing rules than they would be able to when acting in their purely legislative capacity.
But still, cities remain vulnerable to state preemption. Municipal policymaking is always occurring in the space between the city’s formal legal authority and city leaders’ political influence. To pursue the city’s aims, its leaders have to cultivate state-wide allies, especially in the legislature.
In North Carolina, for example, the state’s bathroom bill—HB2—was repealed after corporations raised objections, putting pressure on state legislators to revisit their votes. Sports leagues, including the NBA and the NCAA, were most vocal; they threatened to cancel events in the state if the bill was not repealed. That threat was successful. The bill was repealed, but only after Charlotte also agreed to repeal its transgender non-discrimination ordinance.
“Corporate cosmopolitans” can be effective city allies, in cases where corporate and municipal interests align—likely social, but not economic, legislation. Other non-local networks are also important to the success of particular policy efforts. The municipal minimum wage movement, for example, was spearheaded by national labor unions, anti-poverty organizations, and progressive grassroots activists. And site-specific CBAs have been promoted by national labor and anti-poverty organizations.
Of course, city politics has never been autonomous; it happens against the backdrop of a competitive vertical political system. In the nineteenth century, a city’s state legislative delegation often made urban policy and dispensed political favors from the state capital. Local redevelopment politics in the New Deal and urban renewal eras at mid-twentieth-century were similarly a product of federal policy and often reflected national political priorities. The effective exercise of city power requires the negotiation of interests at multiple institutional scales. It also requires the leveraging of private, non-governmental power. Dependent on state legislative grace, cities must find support where they can.
The relative weakness of the U.S. city has often puzzled observers, who note that the U.S. constitutional structure is otherwise highly decentralized. The puzzle is more explainable once one appreciates the political distinction between local autonomy and city power. The U.S. intergovernmental system supports local autonomy of a certain kind—that which is consistent with a fairly deregulated state. It does not support city power.
As cities regain some of the economic vitality that they lost at midcentury, arguments for home rule may exert more force.
The explosion of preemptive state legislation is thus a predictable outcome of a federal system in which state legislatures have little motivation to respect city prerogatives. That we are seeing resistance by cities to state and federal policies is a credit to a decentralized system of government. That U.S. cities often lose these battles shows how limited the city’s political resources are.
At the turn of the twentieth century, home rule advocates argued that state dominance over the rising industrial cities was corrosive of accountable government, democratic transparency, good policy, and public welfare. As U.S. cities regain some of the economic vitality that they lost at midcentury, these kinds of arguments for home rule may exert more force. City-state conflicts are evidence of a demographic and economic shift. The rural/urban split that defined state legislative politics in the late nineteenth and early twentieth centuries has returned with a vengeance—and now it has gone national.
The attack on U.S. cities is not simply a function of present-day polarized politics, however. Anti-urbanism is deeply embedded in the structure of U.S. state-based federalism. Whether an urban-based home rule movement can gain enough traction to counter this structural bias is a question of political will and institutional reform. We have seen such reform efforts before, and they require significant political mobilization. As we move further into this urban century, the question of the city and its power will continue to assert itself. Perhaps, though, the answers will finally be different.
Richard C. Schragger is the Perre Bowen Professor and Joseph C. Carter, Jr. Research Professor at the University of Virginia School of Law.
His scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy and the constitutional and economic status of cities. He also writes about law and religion. He has authored articles on the Establishment and Free Exercise clauses, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement. Schragger has published in the Harvard, Yale, Chicago, Virginia, and Michigan law reviews, among others. He teaches property, local government law, urban law and policy, and church and state.
Schragger received an M.A. in legal theory from University College London and received his J.D., magna cum laude, from Harvard Law School. He was a supervising editor of the Harvard Law Review. After clerking for Dolores Sloviter, then-chief judge of the U.S. Court of Appeals for the Third Circuit, Schragger joined the Washington, D.C., firm Miller, Cassidy, Larroca & Lewin, where he practiced for two years.
Schragger has been a visiting professor at Quinnipiac, Georgetown, NYU, Chicago, and Tel Aviv. He was the Samuel Rubin Visiting Professor at Columbia. He is the author of City Power: Urban Governance in a Global Age (Oxford University Press, 2016).
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