State Regulation Of Cities Does Not Illegitimately Infringe On “Local Control”

This commentary was originally featured in Forbes on July 24, 2017.

Over the past few years, a battle has raged in several states over the question of where state authority begins and “local control” ends. In my home state of Texas, this war has intensified with Governor Abbott’s call for a Special Session, which began on July 18.

As reported, Abbott has asked the Legislature to address limiting localities in several areas: “The Legislature should cap state and local spending, prevent cities from restricting tree-cutting practices on private land and bar local governments from modifying rules on construction projects once they've begun.” Abbott also is looking “to speed up local governmental permitting processes, limit cities' ability to annex surrounding territory and expand an already approved statewide ban on texting while driving to supersede a ‘patchwork’ of existing local prohibitions previously adopted around Texas.”

These efforts have not gone over well with some. One Texas journalist opined, “If you’re Texas, you’re supposed to hate Washington, but you’re supposed to tolerate the government in Austin, because they didn’t quite meddle in your affairs so much. But what we’ve seen is really a change in attitude led by Governor Greg Abbott, of course a Republican, from a party that has long sought smaller government, and really sought to protect local control.”

Austin Mayor, Steve Adler, agrees, labeling Abbott’s call “a war against cities.”

Another newspaper editorial goes further: “Greg Abbott's position on local control is way off base—and hypocritical.”

Critics of state intervention in local affairs charge that conservatives protest federal overreach into the affairs of the states, but these same leaders then miss the contradiction when they reach into the affairs of political subdivisions.

But state regulation of cities constitutes neither a change in attitude nor hypocrisy. It represents what the U.S. Constitution enables and requires.

That’s why this “hypocrisy” charge comes too late—226 years too late, to be exact. It was 226 years ago (1791) that the first ten amendments to the U.S Constitution were adopted. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As John Dickinson, a Virginia delegate to the 1787 Constitutional Convention, stated it, “The government of each state is, and is to be, sovereign in all matters that relate to each state only. It is to be subordinate barely in those matters that relate to the whole, and it will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions” (emphasis supplied).

Thomas Jefferson, author of the Declaration of Independence, observed, “It is important to strengthen the state governments: and as this cannot be done by any change in the federal constitution, (for the preservation of that is all we need contend for), it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general [federal] government.”

In short, the argument that a state’s regulation of its political subdivisions hypocritically violates conservatives’ allegiance to local control misses entirely the existence and meaning of the Tenth Amendment. If the Texas Constitution contained a provision that stated—“The powers not delegated to the state by the U.S. and Texas Constitutions, nor prohibited by either to the state’s political subdivisions, are reserved to the political subdivisions respectively, or to the people”—the charge of hypocrisy would stick.

But, as I have argued previously, no such clause exists in the Texas Constitution. Without it, this criticism amounts to no more than a political sentiment, rather than a constitutional or legal argument.

Texas is far from unique in struggling over this issue. The title of an Arizona Republic staff editorial conveys its conclusion: “States Need to Stop Meddling in Municipal Affairs.” Clint Bolick published a rejoinder in the same outlet. “Not only is the charge incorrect,” argues Bolick, “but the prescription that the Legislature stop ‘meddling’ in local government business is disastrous.” Why?

Bolick argues that, despite the fact that America’s Founders wanted government “to be as close to the people as possible, they understood that local governments were especially susceptible to special-interest control.” In virtually all local elections, “few people vote, allowing special-interest groups like unions to exercise enormous influence. While nearly everyone keeps a watchful eye on our federal government, few people even know who their local elected representatives are, much less actively participate in local government.”

To be sure, Bolick grants that “the general rule is and should be that local governments have authority to control local affairs.” However, “those powers must be limited so that local governments operate in the public interest rather than for the benefit of special interests.” Nor does he deny that state legislatures are “immune to the same types of special-interest influences.” For this very reason, “not only the federal Constitution but our state Constitution establishes limits on its [the state’s] power.”

Bolick’s rejoinder supplies the most important element missing from the “hypocrisy” critique. The U.S. Constitution was established with three primary goals in mind: democracy, liberty, and competency. Democracy is our form of government, of course, but as Thomas Jefferson remarked, “All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.”

That is, the Constitution establishes a limited democracy, through which majority rule is to be made consonant with individual liberty. But liberty can be endangered by too little as well as by too much government. Too little power in the federal government was the fatal flaw of our country’s first constitution, the Articles of Confederation, which the Constitution replaced. The Founders’ Constitution strengthened the power of the federal government—that is, made government more competent—in order better to secure individual liberty.

Recognition of the primacy of liberty in our constitutional order dispels the notion that a state’s intervention in its political subdivisions is hypocrisy. As Bolick states it, to protect individual liberty, “no government at any level should operate free from scrutiny or constraint.”

Christina Sandefur, of the Goldwater Institute, agrees. According to Sandefur, “We don’t promote local control as an end in itself. We promote it as a means to achieve liberty. When it becomes destructive of those ends, when it’s in fact being oppressive, then absolutely we believe in state control.”

In sum, the battle between state authority and local control comes down to the choice between government regulation and individual liberty. Some cities in Texas, and not only in Texas, would preempt state authority in order to increase their power to regulate the lives of their citizens. When such regulation violates individual liberty, it is not only the right but the duty of state leadership to intervene on behalf of liberty.

This, then, is why there is no equivalent in the state constitution to the U.S. Constitution’s Tenth Amendment.

And it’s why leveling the “hypocrisy” charge against state leaders is false.