by Christina Sandefur
December 10, 2018

Although cities and towns across the country vary widely in size and structure, they share one common (and disturbing) trend: They’re increasingly expanding their power at the expense of individual freedom.

Last week, the American City and County Exchange (ACCE) released “The Levers of Power in Local Governments,” a state-by-state guide to different types of municipal governments in the United States. Father of the Constitution James Madison wrote that federal and state governments, each with explicit protections for liberty, would provide a “double security” for the people.

But our interactions with government aren’t limited to the 50 states and Washington, D.C. According to the U.S. Census Bureau, there are 19,354 “incorporated places” in the United States. And because they are created at the state rather than the federal level, local governments vary in form and function from state to state—and even within the same state. This has important implications for freedom.

For example, the report notes that while the town meeting form of government is common in New England, the more traditional mayor-council government dominates the South. Hawaii is the only state without incorporated municipalities. Arizona municipalities use the council-manager form of government, where each city councilmember is elected, and then the council selects a professional, unelected city manager.

But even more important than the structure of local government is the power local officials possess. Traditionally, cities were seen as political subdivisions of the state, only possessing the powers explicitly delegated to them by state legislators. This has become known as “Dillon’s Rule,” named for Iowa Supreme Court Justice John Dillon, who emphasized the important role of the state in checking local overreach, corruption, and waste.

However, in the late 19th century, Michigan Supreme Court Justice Thomas Cooley challenged Dillon’s Rule, arguing that local governments possess inherent powers and that local communities should be able to exercise authority over their citizens without state interference. The first state to adopt this “Home Rule” system was Missouri in 1875. Since then, the expansion of Home Rule has been gradual but steady.

Jon Russell, a town councilman in central Virginia and the author of the ACCE report, explains why the Home Rule approach is misguided. Unlike the relationship between the states and federal government, where the former retain inherent powers that the latter cannot usurp, local governments are creations of the state and, as such, cities should be governed as extensions of the state. In other words, “The state legislature is where philosophical policy is debated and developed. Local government is the application of those philosophies.” Local governments exist to deliver services that would otherwise be inefficient for the state government to provide, such as local budgets, police departments and water and sewer services, and to govern in areas where government closest to the people is most effective, such as zoning, planning, and certain types of taxation. But cities do not possess independent authority over people’s lives.

Understanding this distinction is critical for protecting liberty. Unfortunately, local governments are increasingly imposing restrictions on citizens in the name of “local control,” especially in states that embrace forms of Home Rule. But, as Councilmember Russell points out:

“Local control” is a construct of politically motivated lawmakers seeking to subvert the responsibility of state government. The political Left sees “local control” as a tool to pass unpopular laws stripping liberty from individuals. The political Right uses “local control” as a way to avoid taking responsibility on regulations and taxes at the state level. At the end of the day, “local control” is still about control when we should be about protecting individual liberty and the rule of law.

After all, the reason we have state and federal constitutional protections for our rights, rather than letting cities run rampant, is to ensure that local governments focus on their most vital jobs without undermining freedom. When local control becomes destructive, then the state has the power—and the duty—to step in and protect people’s rights.

As such, ACCE recommends that states follow Dillon’s Rule as closely as possible, requiring local governments to get state permission to exercise authority outside what has been delegated to them. This provides an important check on local overreach.

Although Arizona extends Home Rule authority to municipalities with populations of at least 3,500 people, state law protects its citizens from overreach by Home Rule cities. One particularly powerful law allows the state treasurer to withhold state shared monies from a municipality when it violates state law or the state Constitution, until the violation is corrected.

Whether a local government is governed by Home Rule or Dillon’s Rule, it’s important to remember that the ultimate authority rests with the states, and state lawmakers should not hesitate to wield their powers against overreaching local governments when the liberty of its citizens hangs in the balance.

Christina Sandefur is the Executive Vice President at the Goldwater Institute.

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