Reorienting Home Rule: Part 2 – Remedying the Urban Disadvantage Through Federalism and Localism

Abstract

This Article proceeds from the premise established in Part I of the series: that the national and state lawmaking systems routinely underrepresent urban policy preferences. Working from this premise, this paper explains why preemption of local initiatives is so common and also why it is often of questionable democratic legitimacy. This Article then explores potential legal doctrines that might protect cities and underrepresented states from excessive preemption. At the federal level, the potential for remedying the urban disadvantage runs into two hard-and-fast constitutional barriers — the equal-footing doctrine and the conflation of federal-state preemption with federal-local preemption. At the state level, by contrast, the constitutional system of home rule offers more promise as a solution.

Cities' ability to enact policy proposals is widespread and well established under standard home-rule doctrine. In a subset of home-rule states, cities enjoy immunity from state legislative override, at least with respect to certain subjects. This immunity, enforced by the judiciary and rooted in the state constitution, holds the promise of ameliorating the urban disadvantage by protecting local enactments from preemption. Such protection is limited, and may not cover the subject matters, such as business regulation and antidiscrimination laws, in which the effects of the urban disadvantage are most pronounced. Moreover, without an appropriate population or density threshold, constitutional home rule might immunize local action that externalizes problems on to surrounding communities. There is also the potential problem of immunizing the choices of rural or suburban local governments whose views are not necessarily underrepresented in the legislature. Nonetheless, constitutional home rule offers at least a partial solution to the disadvantage from which urban areas suffer in politically polarized states where the legislature's aggressive preemption of local law is often the result of gerrymandering.

Keywords: Home Rule, Local Government, Gerrymandering, Preemption, Urban