Early in September, Polk County Iowa District Judge Jeffrey Farrell ruled that state officials had the right to overrule local school boards in decisions about when and how they might open for instruction during the current pandemic. He asserted, “Whether right or wrong, that is their decision to make.” That view reflects longstanding contention over what powers local governments have and whether state (or federal) governments can limit or dictate those powers.
We’ve seen this fight revisited again and again in recent years, as cities and counties have sought to address pressing issues like raising the minimum wage, regulating firearms, banning plastic bags, limiting cooperation of local police with ICE’s round ups of undocumented immigrants, and a host of other issues. Many local governments have met these challenges head on. But faced with conservative Republican control of legislatures, they have been swimming against what seems like an overwhelming tide of legal precedent favoring states.
Has it always been this way? Is there no remedy for protecting local governments’ “home rule”?
The US constitution was silent on the powers of local government, even as it carved out a domain for state authority vis-à-vis the federal government. In the colonies relatively isolated cities had “incubated” traditions of self-government that nurtured a strong tradition of “local control.” But in the era of constitution-making, James Madison worried about the insurgencies that might gain force in cities and towns. As he wrote in Federalist #10: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.” Alexis de Tocqueville gave voice to similar elite fears of local “mob rule” that might require “an armed force which, while remaining subject to the wishes of the national majority, is independent of the peoples of the towns and capable of suppressing their excesses.”
The shifting political currents of the nineteenth century and the presence of an increasingly propertyless, immigrant working class in cities gave rise to a legal reconfiguration of city and state relations. A leading legal scholar on local government, Gerald Frug, has described this shift as, “the subordination of cities to the state [which] turned the political world as it then existed upside down.” The most influential ruling on the limits of municipal “home rule” came to be known as “Dillon’s rule,” an opinion authored by Iowa Supreme Court Justice John F. Dillon in 1868. “The true view is this” he wrote, “Municipal Corporations owe their origin to and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. . .[Cities] are so to phrase it, mere tenants at will of the legislature.” Dillon’s “rule” enjoyed considerable influence, though not without challenge. Judge Thomas Cooley (Michigan) in 1871 asserted that “local government is a matter of absolute right; the state cannot take it away.” In a treatise on principles of constitutional law, he wrote, “It is axiomatic that the management of purely local affairs belongs to the people concerned, not only because of being their own affairs, but because they will best understand, and be most competent to manage them.” Others argued that the right of local self-government antedated state incorporation and could not be limited by it. Dillon’s rule did not categorically limit the powers that states might grant to cities. It simply stipulated that the specific rights of cities to home rule required state authorization. In that respect Dillon’s rule left open the door for considerable state-to-state variation in the actual powers that cities might acquire and exercise.
This is the critical issue. The power of cities to govern their own affairs is variable and subject to political determination, with the exception of fundamental, constitutionally protected civil and political rights. Progressive Era struggles over “home rule” were the byproduct of political demands by cities for a more expanded definition of municipal rights. Urban reformers and socialists in some states moved to claim broader governing authority over municipal life and wellbeing. In so doing they reanimated elite fears over the security of their property at the hands of labor and socialist movements that sought to expand the public sector and municipalize essential services.
Under Iowa law counties and cities enjoy broad authority over local affairs providing their actions are “not inconsistent with state laws.” State constitutional home rule amendments for cities (1968) and counties (1978) authorized local government to ”exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents” (Iowa Code 331.301, for counties.) Nevertheless, the state can limit home rule when the state legislature or the governor specifically prohibit cities or counties from acting in what local authorities may believe to be the general welfare. And in recent cases—county minimum wage increases, policing of undocumented immigrants, and decisions about school opening—state legislation or the governor’s executive orders have indeed pre-empted local authority.
The remedies seem pretty obvious. Local governments and their citizens must mobilize politically to pressure or ultimately elect state legislators and a governor with a mandate to allow cities and counties a broader right of self-government. In the interim a measure of collective resistance (civic disobedience!) may be in order. We must simply do the right thing to protect students, defend undocumented immigrants, and as a community uphold a higher minimum wage no matter what the state may say.