The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In recent years, there has been extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a less-well known trend of conflict between states and local government. New articles by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case. But actually achieving increased autonomy will not be easy.
Libertarian-leaning conservative law professor Glenn Reynolds (most famous as the founder of the Instapundit blog), has an article focusing on the plight of conservative rural areas subject to the dictates of urban-dominated state legislatures in blue states. As he points out, their complaints have led to the rise of secession movements in states like California and Oregon. Here is his abstract, summarizing the piece:
This short piece looks at the growing phenomenon of intra-state secession movements. From California, where plans have been floated to split the state into two, five, or six pieces, to more traditional secessionist movements in Eastern Oregon and Eastern Washington, to plans to separate upstate New York and downstate Illinois from the large metropolitan areas that dominate state politics, various states are facing internal separatist movements. The paper looks at the sources of the dissatisfaction driving these movements, and suggests a number of solutions to address that dissatisfaction without amending the Constitution or adding stars to the flag.
From the opposite side of the political spectrum, University of Virginia law professor Richard Schragger (a leading academic expert on local government) has an important new article focused on growing red state legislative efforts to restrict the autonomy or blue urban enclaves within their jurisdiction:
American cities are under attack. The last few years have witnessed an explosion of preemptive legislation challenging and overriding municipal ordinances across a wide-range of policy areas. City-state conflicts over the municipal minimum wage, LGBT anti-discrimination, and sanctuary city laws have garnered the most attention, but these conflicts are representative of a larger trend toward state aggrandizement. These legal challenges to municipal regulation have been accompanied by an increasingly shrill anti-city politics, emanating from both state and federal officials. This Article describes this politics by way of assessing the nature of—and reasons for—the hostility to city lawmaking. It argues that anti-urbanism is a long-standing and enduring feature of American federalism and seeks to understand how a constitutional system overtly dedicated to the principles of devolution can be so hostile to the exercise of municipal power. The Article also provides a current accounting of state preemptive legislation and assesses the cities' potential legal and political defenses. It concludes that without a significant rethinking of state-based federalism the American city is likely to remain vulnerable.
Both Reynolds' rural red enclaves in blue states and Schragger's urban blue enclaves in red states could potentially benefit from increased local autonomy from states. Greater local control might have important systemic advantages, as well. The most obvious is that more people in both blue and red states could live under the types of policies they like. In addition, greater devolution of power to the local level can increase opportunities for people to "vote with their feet." It is usually cheaper and easier to move from one city to another in the same region, than to decamp to a different state. And foot voting is often a better mechanism of political freedom than ballot box voting, because foot voters have a far higher chance of making a meaningful decision, and much stronger incentives to be well-informed.
It is neither possible nor desirable to devolve every issue to the local level. Some problems are so large-scale that they can only be handled at the state, national, or even international level. Global warming is an obvious example of the latter. The importance of foot voting suggests the need to restrict local control over immobile assets, such as property in land, which cannot be moved in response to exploitative local policies. Such policies also often have the effect of eliminating valuable opportunities for foot voting, most notably in the case of restrictive zoning rules that lock out the poor and lower middle class, cutting them off from valuable job opportunities. Still, there are large potential gains from devolving power over a wide range of issues where there is little risk of losing economies of scale or destroying foot voting opportunities.
Increasing local autonomy from states will not be an easy task, however. Secession movements aimed at forming new states are one possible route. But, as Reynolds explains, the odds are stacked against them, because breaking up an existing state requires the consent of both Congress and that state's own legislature.
Reynolds advocates federal legislation to protect local autonomy against the states. But it is not clear what incentive Congress would have to pass it. After all, most members of Congress (especially senators elected in state-wide elections) represent the dominant political majority within their states - the very group whose power dissenting localities seek to escape. In addition, increased congressional intervention in state-local relations might well result in greater imposition of homogeneity rather than less.
Both Reynolds and Schragger consider the possibility of state-level reform, granting greater autonomy to localities. Where feasible, this may well be the best option. But, it too, usually requires the support of the very same state legislatures that are undermining local autonomy to begin with.
Schragger also considers a number of innovative legal arguments that would enable federal courts to carve out greater autonomy for localities, such as expanding Tenth Amendment "anti-commandeering" rules to protect local governments against the states in much the same ways they currently shield both states and localities from the federal government. I have doubts about the validity of these theories. And, as Schragger recognizes, it is unlikely that the Supreme Court will endorse them in the near future.
In my view, Reynolds and other commentators may underestimate the potential viability of creating new states through secession. Such efforts are clearly an uphill battle. But state legislatures might agree to them if, as a result, they end up with a more ideologically homogeneous state where currently dominant forces have greater control. Financial incentives might also help lead to agreement - if the newly formed state was willing to give some sort of separation payment or "divorce bill" to its former state government, as the United Kingdom will have to do in order to leave the European Union. Congress, in turn, might consent if secession could be managed in such a way as to avoid altering the partisan balance of power in the Senate. For example, large states such as California and Texas coulld be partitioned in ways that create equal numbers of new Democratic and Republican states. The creation of new states through secession has occurred a few times in American history, as with the establishment of Maine and West Virginia in the nineteenth century. Perhaps the practice can be revived. Still, doing so is unlikely to be either quick or easy.
I am not optimistic that we can achieve a major increase in local autonomy from state governments in the near future. But the debate over this question is just starting to heat up again. It is possible that new strategies for devolution can be developed. From that standpoint, increased interest in the issue on different sides of the political spectrum is a hopeful sign.