Local government weakened
by US Supreme Court rulings
By Tony Favro, Senior Fellow*
ON THIS PAGE: Supreme Court’s recent rulings
went against public opinion ||| No mention of local government in American Conåstitution ||| Supreme Court rulings restrict local government to serve local needs ||| Conclusion
ON OTHER PAGES: US mayors defend women’s right ||| Mayors push for gun control ||| Massacres will not change gun culture ||| US mayors caught up in nation’s culture war ||| American mayors ||| Women mayors in America ||| New York’s Borough Presidents
Supreme Court’s recent rulings
went against public opinion
August 2022: The United States Supreme Court concluded its 2021-2022 term in July with three controversial rulings. The Court ended a woman’s constitutional right to an abortion; it limited the ability of the federal government to regulate certain pollutants; and it limited the ability of local governments to place restrictions on citizens’ carrying concealed firearms in public.
The Court’s decisions went against prevailing public opinion. Polls consistently show that most Americans support a woman’s right to an abortion, federal actions to ensure clean air, water, and land, and stronger restrictions on personal firearms. Most Americans, in other words, question whether the rulings will produce good consequences for themselves, their loved ones, and their communities in terms of women’s physical and emotional health, greener communities, and safer neighborhoods. The decisions thus appeared to focus on achieving the Supreme Court’s specific narrow ideological results rather than on the broader effects the rulings will have on the present and future well-being of the nation and its citizens.
The rulings also help illustrate the little discussed and rather ambiguous relations between local governments and the Supreme Court in the United States.
No mention of local government
in American Constitution
The Constitution of the United States mentions federal and state governments but not local governments. Local governments in the US - cities, counties, towns, and districts - are established and regulated by state law. Their powers, authorities and, indeed, their entire framework of governance rest on state law.
Constitutionally, federalism in the US means a two-tier federal-state governmental structure. But, in reality, the US has a three-tiered federal-state-local system. Most of the governance functions of the states are actually executed by local governments. Cities, counties, and other local governments, for example, carry out most of the states’ responsibilities for public health, safety, and welfare. States support this extensive local role by providing for home rule in their state constitutions or through enabling legislation. Home rule gives local governments’ power to take action while acknowledging that state laws can preempt local laws and that local governments have no constitutional rights against their states (Briffault, especially pp. 2008, 2012, 2017).
In 2011, the US Supreme Court, led by current Chief Justice John Roberts, explained its view of federalism in the US in a majority opinion that quoted prior Supreme Court decisions: ”The federal system,” the Court wrote, “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments [national and state], not one.’
The Framers [of the US Constitution] concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.
Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States… But that is not its exclusive sphere of operation… ‘State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power’… The federal structure allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ [and] enables greater citizen ‘involvement in democratic processes…’” (1)
In practice this means that the Supreme Court necessarily treats local governments as subdivisions of their states. However, the Court's general pattern over the past several decades has been a broad deference toward local government decision making except where a local government’s choices, from the perspective of the Court’s majority, has purposely infringed upon constitutionally-protected individual rights (Gelfand, p. 636).
Thus, the Supreme Court in its recently-concluded term struck down, on constitutional grounds, a New York City law that placed strict restrictions on carrying concealed firearms in public for self-defense. The local law was adopted nearly 150 years ago and continued to have strong support from city residents who believed it enhanced public safety. The Supreme Court majority ruled that the law violates individual Constitutional rights “by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” (2)
Public safety provides an illustration of the ambiguities in the US system of governance. Certainly, cities and other local governments, unlike states, cannot claim sovereignty. But their central role in policing, including the power to make arrests and use deadly force, indicates that they are expected, indeed required, to exercise some of the powers generally associated with sovereignty. Moreover, their role in maintaining public safety and their daily encounters with crime have made many local governments particularly attentive to the connections between violence and the widespread availability of firearms, as well as to the need to work with members of immigrant communities, disaffected youth, mentally ill residents, and other often marginalized groups that come into contact with the local police (Briffault, p. 2020).
In other words, cities and other local governments must deal with consequences that the Supreme Court can choose to avoid considering. To deal with street-level problems, democratically-elected mayors and local officials often feel an urgency to experiment and innovate with how they provide services. However, they need legal space to innovate.
Supreme Court rulings restrict local
government to serve community needs
In its recent term, the Supreme Court of the United States ruled that abortion was no longer constitutionally protected and that the individual states, not the federal government, had the right to regulate abortion. Moreover, the Court’s majority found that previous Supreme Court decisions which allowed abortion as an individual liberty protected by the Fourteenth Amendment of the US Constitution were “wrongfully decided”. In other words, the legal justifications used by previous Supreme Courts to support the right to an abortion were flawed. This logic potentially jeopardizes other constitutionally-protected personal liberties acquired using the same legal justifications, such as gay rights, same sex marriage, and interracial marriage.
In expanding state sovereignty, the Supreme Court undercut a basic individual right and threatened others, with profound implications for local governments.
Local governments depend primarily on local taxes and other own-source revenues to pay for local programs. The pressure to balance costs and revenues often prompts innovations. Expansive local antidiscrimination laws and equity offices implemented by many US cities in recent years, for example, may reflect not simply a responsiveness to larger urban populations of LGBTQ+ residents and an explicit recognition of structural racism but also a desire to attract “creative class” residents by signaling that the city values equality and diversity. If the Supreme Court dilutes or eliminates individual rights, it may make it harder for cities to succeed in a global economy that rewards diversity (Briffault, pp. 2020-2021).
In its recent term, the US Supreme Court limited the US Environmental Protection Agency's power to regulate carbon emissions that cause climate change. The Court ruled that the EPA could not implement its proposed caps on carbon emissions from coal and natural gas plants because such caps were not specifically mentioned in the landmark Clean Air Act which was passed by Congress in 1970 and which authorized the EPA to identify and regulate the most harmful air pollutants. More broadly, the decision potentially limits the regulatory power of all federal agencies only to what Congress specifically delegates to them and discourages anything new, such as addressing climate change. (4)
The Supreme Court decision will affect how local governments can protect their environment in ways that often are not considered. For example, local responsibility for garbage pickups, street cleaning, and parks has heightened local governments’ awareness of the costs of pesticide use and nonbiodegradable products like plastic bags. The first US bans were implanted in cities on such environmentally-harmful products as polystyrene (Berkeley, 1987), plastic cups (San Francisco, 2007), lawn pesticides (Takoma Park, Maryland, 2013). Similarly, the central role of local governments in land use planning, public health, maintenance of public infrastructure, and economic development has led many local governments to take a leadership role in adopting resiliency initiatives to address climate change (Briffault, p. 2020).
Local governments in the US have connected a healthy environment with livability in recent years and taken the lead in strengthening this connection through the construction of bike lanes and pedestrian trails, brownfield cleanups, adaptive reuse of vacant buildings, waterfront development, and many other environmentally-focused initiatives. When a Supreme Court decision is perceived as jeopardizing a clean environment and increasing environmental risks, it is often seen at the local government level as jeopardizing economic competitiveness, social and environmental justice, and personal wellness.
In recent years, American cities have become testing grounds for different approaches to solving difficult, and often disputed, problems. Mayors and their administrations have proposed, devised, and implemented various approaches in their cities and gathered real-world evidence of how these approaches work in practice. Do stronger firearms regulations promote or impair personal security? Do sanctuary laws assist or undermine the well-being of communities with large numbers of immigrants? Do living wage, family leave, and predictive scheduling laws burden or benefit the local economy? Does a guaranteed income and increased child care reduce generational poverty? Does motor vehicle congestion pricing reduce air pollution? To find out the answers to these and other contested questions American mayors have experimented and then evaluated the results (Briffault, p. 2027).
Certainly, there is no necessary connection between local government and innovation in a positive sense. Local governments in the US have been associated with a range of regressive policies, including anti-immigrant, anti-union, anti-evolution, anti-medical marijuana, and exclusionary zoning policies, as well as with abusive law enforcement as evidenced in Ferguson, Minneapolis, Baltimore, Louisville, Rochester, and elsewhere (Briffault, pp. 2020, 2026).
Still, as the Supreme Court wrote, “The federal structure allows local policies more sensitive to the diverse needs of a heterogeneous society [and] permits innovation and experimentation.” Left unsaid is the reality that mayors and local governments can innovate and experiment only when they have space to try new programs, and it is still an open question how much local space for self-determination the current Supreme Court is willing to protect for problems that arise at the local level. (5)
Americans overwhelmingly cling to the idea that their local government is closest to them and that government closest to the people governs best. Americans support local government autonomy and demand to be involved in local government decisions.
Ironically, it is the very responsiveness of local governments to citizen concerns, their attentiveness to local needs and preferences, and their policy and programmatic innovations designed to address local problems that have provoked legal disputes (Briffault, p. 2019).
It was New York City’s popular gun law intended to address local safety concerns that was challenged in court in recent years, as were local initiatives in other cities regarding sanctuary for undocumented immigrants, antidiscrimination laws, environmental and public health regulation, and other issues important to a local community.
When these disputes reach the Supreme Court, the ambiguities of the US governmental structure often surface. Federalism trumps localism. What often is at play is not just rights regarding such issues as abortion or firearms or clean air but also the capacity for local self-government, the ability of local governments to address local problems. In US federalism, the scope of local autonomy is necessarily a matter of state law. Decisions of the US Supreme Court often provoke a renegotiation of the state-local relationship, a redefinition of the limits of home rule, that is, of local self-determination.
Most US states are controlled by Republicans, and most larger cities are led by Democrats. Not surprisingly, there are often policy differences between state legislators and urban mayors. In recent years, renegotiations of the state-local relationship tend to favor the states and the states’ political views. Observers have noted a shift in decision making authority in some states from majority-minority local governments to a white-dominated state government (Briffault, pp. 1998, 2009).
In partisan state environments, the scope of home rule has narrowed, with more power for the state and less for local governments. Mayors and local government administrators have had to become more creative in devising new solutions to pressing problems. Yet local governments continue to experiment and promising innovations continue to spread among different communities, liberal and conservative, in different states. The nationwide diffusion of local government innovations that contribute to social and fiscal stability, and often help depolarize issues, is a reminder of the important and often overlooked role local governments play in the US political structure.
It is also a reminder to the Supreme Court and others of the need to consider in their decisions the capacity of local governments to be effective policymakers.
(1) Bond v. United States, 564 U. S. 211 (2011)
(2) New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022)
(3) Dobbs v. Jackson Women’s Health Organization, 597 U. S. ___ (2022)
(4) West Virginia v. EPA, 597 U.S.___ (2022)
(5) Bond v. United States, op. cit.
This article draws its own conclusions. However, it is greatly indebted to the research and rhetoric of, especially:
Richard Briffault’s The Challenge of the New Preemption. Stanford Law Review, Volume 70, June 2018.
Hasen, Richard. The Supreme Court’s Pro-Partisanship Turn. The Georgetown Law Journal Online, Volume 109, 2020.
Smith, Fred. Local Sovereign Immunity. Columbia Law Review, Volume 116, Number 409, 2016.
Gelfand, M. David. The Constitutional Position of American Local Government: Retrospect for the Burger Court and Prospect for the Rehnquist Court. Hastings Constitutional Law Quarterly, Volume 14, Number 3, 1987.
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