Defunding Cities: Reconsidering the Fiscal Sanctioning Measures of State Punitive Preemption Statutes
In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.
This Comment considers whether local governments are legally protected from state-sanctioned punitive financial penalties. In doing so, it distinguishes financial penalties from permissible forms of state preemption and analyzes existing judicial decisions that consider financial penalty arguments. After discussing the existing doctrine, this Comment develops a conceptual framework to suggest that certain punitive preemption tools are not legal. Ultimately, this Comment maintains that coercive financial mechanisms attached to preempting legislation are unconstitutionally coercive as they functionally force local governments to relinquish core elements of their sovereignty.
I. Introduction
TOPLegal and policy conflicts between state governments and local authorities are increasing significantly.1
Seegenerally Richard C. Schragger, Localism All the Way Up: Federalism, State-City Conflict, and the Urban-Rural Divide, 2021Wis. L. Rev. 1283 (2021).
See id.; see generally Jacob Grumbach, Laboratories Against Democracy 97–148 (2022).
See Ronald Brownstein, ‘Breaking Point’: Why the Red State/Blue City Conflict is Peaking Over Masks, CNN (Aug. 17, 2021), https://www.cnn.com/2021/08/17/politics/2020-census-red-states-blue-cities[https://perma.cc/JEX4-QU28];Jasmine C. Lee et al., What Are Sanctuary Cities?, N.Y. Times (Sept. 2, 2016), https://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities.html[https://perma.cc/4QWW-QJLP];see Brenna Goth & Ayanna Alexander, ‘Defund the Police’ in Cities Face Ire of State GOP Lawmakers, Bloomberg Law (Mar. 16, 2021), https://news.bloomberglaw.com/social-justice/defund-the-police-in-cities-faces-ire-of-state-gop-lawmakers[https://perma.cc/KU9C-37YP].
Local governments serve a number of important purposes. Politically, localities provide an important mechanism for community self-definition, democratic participation,4
See Hannah Arendt, On Revolution 235–43 (1963).
See id.
See Wallace Oats, An Essay on Fiscal Federalism, 37 J. of Econ. Literature 1120, 1121–26 (1999).
See John Stuart Mill, Considerations on Representative Government 273–93 (1861).
Despite their importance, municipalities are not mentioned in the text of the U.S. Constitution. Instead, the constitutional legitimacy of local government is grounded in the authority of the Tenth Amendment of the U.S. Constitution8
U.S. Const. amend. X; see Joshua S. Sellers & Erin A. Scharff, Preempting Politics: State Power and Local Democracy, 72 Stan L. Rev. 1361, 1371–72 (2020).
207 U.S. 161 (1907).
Id. at 178–79.
Nevertheless, local governments retain legal authority under federalism. Local governments exist through a grant of power from the state, and, once such a grant has been authorized, a figurative boundary of authority insulates municipalities vis-à-vis the state.11
See Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).
See id. at 1220–22; see generally Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 2022 (2018).
In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption.13
See Briffault, supra note 12, at 1997.
See id. at 1999–2008.
This Comment considers whether local governments are legally protected from state-sanctioned punitive financial penalties; it distinguishes financial penalties from permissible forms of state preemption and analyzes existing judicial decisions that consider financial penalty arguments. After discussing the flaws in the existing doctrine, this Comment develops a conceptual framework to suggest that certain punitive preemption tools are not legal.
II. Legal Authority of Local Governments
TOPIn structural constitutionalism doctrine, localities are conceptualized on a spectrum of sovereignty. On one end are theorists who contend that localities are entities possessing an inherent right of self-government.15
See David Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487, 490 (1999); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1059 (1980); see Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 15–18 (2000); see Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 Am. U. L. Rev. 369 (1985).
See Briffault, supra note 12.
See John F. Dillon, Commentaries on the Law of Municipal Corporations 449–50 (1911); see Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & Pol. 187, 198 (2005).
Two rules of statutory interpretation functionally translate these distinct conceptions of local government into practice. Dillon’s Rule embodies the idea that states have power over their political subdivisions.18
See Dillon, supra note 17, at 449–50.
See John G. Grumm & Russell D. Murphy, Dillon’s Rule Reconsidered, 416 Annals Am. Acad. Pol. & Soc. Sci. 120, 127 (1974) (explaining that historically, state restrictions on localities “to curtail the at times reckless municipal investments in internal improvements, railroads included”).
See Colum. L. Rev. Ass’n, Home Rule and the New York Constitution, 66 Colum. L. Rev. 1145, 1149 n.22 (1966).
See Grumm & Murphy, supra note 19, at 121.
See id.
See Dillon, supra note 17, at 448–49.
See Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law 289–90, 327–28 (8th ed. 2016).
Conversely, in home rule systems, cities may legislate presumptively on local issues unless they are preempted by the state. Emerging in the late nineteenth century, home rule systems and other constitutional restrictions on state legislative action such as general law requirements and ripper clauses, captured a revolt against local powerlessness given the misuse of plenary authority by remote and rural-dominated legislatures.25
See Colum. L. Rev. Ass’n, supra note 20, at 1146 (1966); see alsoDavid O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment—Part I, 1969 Utah L. Rev. 287, 300 (1969).
See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1354 (2009); Lynn Baker, Clayton P. Gillette & David Schleicher, Local Government Law, Cases and Materials 318–22, 347–57, 362–70 (6th ed. 2022).
See Rachel Simon, The Firearm Preemption Phenomenon, 43 Cardozo L. Rev. 1441, 1450 (2022).
There are generally considered to be two models of home rule that are structured through state constitutional or legislative mechanisms. The first is considered the imperium in imperio model. In the imperio model, the state constitution empowers cities to adopt charters that give localities the autonomous power to act within “local” or “municipal” affairs. The state constitution provides corresponding constitutional protection against state interference.28
See generally Gordon L. Clark, Judges and the Cities: Interpreting Local Autonomy 78–80 (1985).
See id.
See National League of Cities, Principles of Home Rule for the 21st Century, 100 N.C. L. Rev. 1329, 1335 (2022) (citing Am. Mun. Ass’n, Model Constitutional Provisions for Municipal Home Rule 6 [1953]).
See Sarah Fox, Home Rule in an Era of Local Environmental Innovation, 44 Ecology L. Q. 575, 590 (2017).
See Briffault, supra note 12, at 2011–14.
A. Constructing a Boundary of Local Power Through the State’s Preemption Power
TOPPreemption is a legal principle and policy tool that a higher authority of law supersedes a lower authority of law if both address the same subject matter. States traditionally claim that preemption is necessary in order to establish statewide regulatory baselines, nullify inconsistent local rules, and control negative extraterritorial effects.33
See Lori Riverstone-Newell, The Rise of State Preemption Laws in Response to Local Policy Innovation, 47 Publius J. Federalism 403 (2017).
See Colum. L. Rev. Ass’n, supra note 20, at 1146 (1966).
Conflict between state and local law may emerge when a city passes an ordinance that the state then claims is preempted, either expressly or implicitly. A court is then tasked with determining the degree to which a local ordinance can coexist with the state’s authority.35
See Briffault, supra note 12, at 1997.
See Schragger, supra note 11, at 1181–82.
Simon, supra note 27, at 1444.
See Rachel Proctor May, Punitive Preemption and the First Amendment,55 San Diego L. Rev. 1, 7–8 (2018).
It remains difficult for localities to prevail when challenging state laws, but it is possible for Dillon’s Rule and imperio home rule localities to triumph in preemption conflicts. In imperio home rule localities, conflicts between state and local law regarding municipal matters are resolved in the locality’s favor.39
See generally Amer. Fin. Serv. Ass’n v. City of Oakland, 104 P.3d 813 (Cal. 2005); see also Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 36–37 (Colo. 2000).
See Simon, supra note 27, at 1449–50.
B. The Rise of Punitive Preemption
TOPTowards the end of the twentieth century, state legislatures started to deploy preemption in a novel manner: to expressly preempt large swaths of local control prior to any local action.41
See Nestor Davidson & Laurie Reynolds, The New State Preemption, the Future of Home Rule, and the Illinois Experience, 4 Ill. Mun. Pol’y J. 19 (2019); see generally Henry Garber, The Shackling of the American City, Slate (Sept. 9, 2016), https://slate.com/business/2016/09/how-alec-acce-and-pre-emptions-laws-are-gutting-the-powers-of-american-cities.html[https://perma.cc/X48U-3EUX].
See Briffault, supra note 12, at 2007–08.
See Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—And the Nation 62 (2019).
Id. at 240.
Following the success of the tobacco industry in enacting state preemption to remove local regulations, other business industries and ALEC copied this model to advance their own business interests.45
See id. at 240–42.
See Wis. Stat § 103.007 (2017).
2015 Mich. Pub. Acts 64 (codified at Mich. Comp. Laws §§ 123.1381–.1396 (2018)).
While the practice of express field preemption was first popularized in the late twentieth century, state legislatures continue to utilize this mechanism to displace local regulatory frameworks.48
See Riverstone-Newell, supra note 33, at 406; seealso Hertel-Fernandez, supra note 43, at 62 (analyzing Uber and Airbnb’s lobbying to pass preemptive state legislation to “make it harder [if not impossible] for localities to pass labor market measures, including minimum wage hikes, which exceed state law.”).
See Staff of H.R. Crim. Just. Subcomm., Regulation of Firearms and Ammunition Analysis, H.R. 2011-45, Reg. Sess., at 1 (Fla. Feb. 2011).
See Staff of H.R. Jud. Comm., Regulation of Firearms and Ammunition Analysis, H.R. 2011-45, Reg. Sess., at 1 (Fla. June 2011).
See Fla. Stat. § 790.33 (2011).
C. Punitive Mechanisms
TOPPunitive preemption statutes can be further classified based on the punitive mechanism described in the text of the statute. Punitive preemptive legislation can (1) create privately enforced civil penalties against local officials and governments, (2) establish criminal penalties (and removal mechanisms) for elected officials, and (3) institute state-enforced fiscal sanctions for local governments.52
See Schragger, supra note 11, at 1182.
See Briffault, supra note 12, at 2002–08.
Consider Section 790.33 of the Florida Statutes, which utilizes two punitive mechanisms. First, the statute creates a civil cause of action “against the elected or appointed local government official or administrative agency head under whose jurisdiction a violation occurred” and attaches a fine of up to $5,000.54
Fla. Stat. § 790.33.
Staff of H.R. Jud. Comm., Regulation of Firearms and Ammunition Analysis, Fla. H.R. 45 at 1.
Marcus v. Scott, 2014 WL 3797314, at *1–2 (Fla. Cir. Ct. June 02, 2014).
Id.
See id. at *3–4.
See id., aff’d Fried v. State, 2023 WL 309000 (Fla. Jan. 19, 2023).
1. State constructions of fiscal sanctions
When considering the fiscal sanctions for local governments in violation of state preempting legislation, state legislatures often rely on direct fines that either impose overwhelming fines on localities or cut off state revenue-sharing funds.60
See Fla. Stat. § 790.33 (2011) (creating a $100,000 civil cause of action against “any county, agency, municipality, district or other entity . . . [that] caused the violation” of the state preemption statute); see Ariz. Rev. Stat. Ann. § 13–3108 (2017) (empowering judges to impose a $50,000 civil penalty on any locality that “knowingly and willfully violate[s]” the state’s firearm preemption statute); see Ala. Code § 41-9-230 (2017) (directing the Alabama Attorney General to impose a $25,000 fine on any local government that removes an “architecturally significant . . . monument” that is more than 40 years-old, which functionally applies to cities seeking to remove Confederate monuments).
Iowa Code § 825.1–.11 (2017).
See id.
See Tenn. Code Ann. § 4-1-412 (2019) (enacting legislation that contains a punitive measure resulting in the loss of state grants for economic and community development for a period of five years if a locality violates a Tennessee state statute prohibiting the removal of Confederate monuments).
See Ariz. Rev. Stat. Ann. § 41–194.01 (2017) (enacting legislation that provides for the cutoff of state aid to localities for any local law that the state Attorney General determines is preempted and which the local government then fails to repeal).
Assuming the state has its standard preemption power, the local law that is in conflict with state law would be invalid and no direct fine on the locality would be necessary. Therefore, the fining mechanism suggests two possible state constructive purposes. First, the direct fining provision may be an expressive vehicle and signal the state’s commitment to preempt. Alternatively, the fiscal sanction may implicitly signal that the state is not sure whether it has preemption power, but that defiance or judicial challenge to the State Legislature’s determination of preemption authority, will be costly. Practically, this means that a locality could be punished for lawfully enacting a valid provision. For example, in 2019, Arizona enacted House Bill 2756, which preempts any locality’s minimum wage law and requires the state to calculate the cost to Arizona’s government when cities and counties raise the minimum wage above the statewide rate.65
See Ariz. Rev. Stat. Ann. § 35–121.01 (2019).
Id.
See Bob Christie, Judge Sides with Flagstaff Over Arizona in Minimum Wage Fight, AP (Oct. 11, 2021), https://www.azcentral.com/story/news/local/arizona/2021/10/11/judge-sides-flagstaff-over-arizona-minimum-wage-fight/6097106001/[https://perma.cc/5DG7-95LV].
2. State expansions of fiscal sanctioning elements
In an effort to expand the fiscal santions used by states against localities, state legislatures are designing new forms of sanctions to further punish cities by threatening local revenue streams. In 2021, the Texas Legislature amended the Local Government and Tax Code to punish cities with a population of more than 250,000 for reducing their police department budgets.68
See H. B. 1900, 87th Leg., Reg. Sess. (Tex. 2021) (enacted).
See Robert Garrett, Abbott Pushing Legislation to Strip Cities of Local Sales Tax Funds if They ‘Defund the Police,’ Dall. Morning News (Jan. 14, 2021), https://www.dallasnews.com/news/politics/2021/01/15/abbott-considers-bill-to-strip-cities-of-local-sales-tax-funds-if-they-defund-the-police/[https://perma.cc/TTM4-ZQYW](discussing Governor Abbott’s statement that “one of his major goals for the legislative session . . . is ‘to make it fiscally impossible’ for a city to slash funding of police’”).
See H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, H.R. 87-23848, Reg. Sess., at 1 (Tex. 2021).
House Bill 1900 contains five punitive fiscal elements. The first punitive fiscal element prevents a home-rule defunding municipality from annexing any area.71
See id. at 2.
H. B. 1900, 87th Leg., Reg. Sess. (Tex. 2021) (enacted).
See generally, Zoltan L. Hajnal, America’s Uneven Democracy: Turnout, Race, & Representation in City Politics 70–100 (2009).
H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, Tex. H.R. 23848 at 3.
See Garrett, supra note 69.
See H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, Tex. H.R. 23848 at 3.
See id. at 2.
3. Fiscal sanctions implicate the boundary between incentives and coercion
When a higher legal authority offers financial incentives to—or imposes financial penalties on—a lower legal authority, questions of coercion arise. It is important to distinguish financial sanctions from financial incentives. While there is no state doctrine regarding the distinction between financial sanctions and financial incentives, analogous doctrine at the federal level may provide theoretical guidance because the animating principles are cognate.78
See Briffault, supra note 12, at 2016–17.
In National Federation of Independent Business v. Sebelius,79
567 U.S. 519, 581–82 (2012) (hereinafter NFIB).
Id. at 577–78.
Id. at 581–82.
Coercion is concerning to the Supreme Court because “the legitimacy of Congress’s exercise of the spending power ‘rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”82
Id. at 577.
Id.
See New York v. United States, 505 U.S. 144, 168 (1992).
Patrick Haney, Coercion by the Numbers, 64 Case Western L. Rev. 2, 583–84 (2013).
See id.
As such, the spending power of Congress is subject to five general restrictions: (1) it must be in the pursuit of the general welfare; (2) the conditions for receipt of the funds must be unambiguous; (3) the conditions on the funds must be related to the federal interest; (4) other constitutional provisions cannot bar the conditional grant of the funds; and (5) the financial inducement cannot be so coercive that it becomes a compulsion.87
See South Dakota v. Dole, 483 U.S. 203, 207–208 (1987); NFIB, 567 U.S. at 580–81.
Nonetheless, it remains difficult for a judge to assess the point “where persuasion gives way to coercion.”88
NFIB, 567 U.S. at 584–85.
See id. at 581–82.
Id.
See id. at 580–81.
See id.
Haney, supra note 85, at 586–87.
See NFIB, 567 U.S. at 584 (2012).
The dissenting opinion of Justices Scalia, Kennedy, Thomas, and Alito mirrored much of Chief Justice Robert’s coercion analysis. To demonstrate state reliance on Medicaid funding, their opinion contrasted federal funding for Medicaid with elementary and secondary education. They indicated that federal funding for elementary and secondary education constituted only 6.6% of total state spending, while the figure was close to 22% for Medicaid.95
See id. at 682–83 (Scalia, Kennedy, Thomas, and Alito, J.J., dissenting).
Id.
Id. at 682.
The dissenting Justices argued that it would be impractical for the state to replace federal funds because “withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating States.”98
Id. at 680.
Reply Brief of State Petitioners on Medicaid at 19, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (No. 11-400).
Justice Ginsburg’s opinion, joined by Justice Sotomayor, concurred in part with the Chief Justice’s majority opinion regarding the validity of the minimum coverage provision.100
See NFIB, 567 U.S. at 644–45 (Ginsburg, J., concurring in part and dissenting in part).
See id.
See Haney, supra note 85, at 589–90.
See id.
NFIB, 567 U.S. at 643–44 (Ginsburg, J, concurring in part and dissenting in part).
When a higher legal authority offers financial incentives to—or imposes financial penalties on—a lower legal authority, questions of coercion arise. NFIB’s reasoning, however, places significant pressure on courts to resolve this question without legally cognizable standards.105
See Mark Seidenfeld, Bounds of Spending Power, 61 Ariz. L. Rev. 1, 16–17 (2018).
NFIB, 567 U.S. at 627–28 (Ginsburg, J., concurring in part and dissenting in part).
D. Challenges to Punitive Preemption Measures
TOPMunicipalities do not frequently sue states.107
See Goth & Alexander, supra note 3.
See Fla. Carry, Inc. v. City of Tallahassee, 212 So. 3d 452, 456 (Fla. Dist. Ct. App. 2017); see also Briffault, supra note 12, at 2014–15.
See Proctor May, supra note 38, at 12–13.
City of Tallahassee, 212 So. 3d at 456; see Briffault, supra note 12, at 2014–15.
See Simon, supra note 27, at 1501–3.
See Proctor May, supra note 38.
See Simon, supra note 27, at 1504.
1. Municipal challenges to fiscal sanctions
While challenges to statutes that institute state-enforced fiscal sanctions are brought less frequently than other punitive mechanism challenges, some municipalities are arguing that these statutory elements are unconstitutional. The City of Tucson, Arizona, advanced a challenge to fiscal sanctioning measures on state separation-of-powers doctrines. In State ex rel. Brnovich v. City of Tucson,114
399 P.3d 663, 666 (Ariz. 2017).
Ariz. Rev. Stat. Ann. § 41-194.01(A) (2017).
See Simon, supra note 27, at 1506–07.
State ex rel. Brnovich, 399 P.3d at 668.
In California, a small number of localities contended that fiscal sanction measures were unconstitutional coercive funding conditions. In City of El Centro v. Lanier,118
200 Cal. Rptr. 3d 376 (2016).
Cal. Lab. Code § 1782 (2013).
The plaintiffs advanced their case on two main arguments. First, the cities asserted a traditional preemption argument: California is an imperio home rule state and therefore grants charter cities the right to adopt and enforce ordinances that conflict with general state laws, so long as the local law addresses a municipal issue.120
See City of El Centro, 200 Cal. Rptr. at 383–84.
See id.
See id. at 389.
See id.
Plaintiff cities also advanced the argument that Section 1782 “amounts to unconstitutional financial coercion as it forces charter cities to relinquish their sovereignty and use their local funds to further the state goal of prevailing wages.”124
Id. at 385.
See NFIB, 567 U.S at 580 (2012).
City of El Centro, 200 Cal. Rptr. at 385.
In order to sustain a claim of financial coercion, the court sought evidence from cities that could demonstrate that the financial inducement offered by the state had become coercive. The majority opinion provided that such a claim may be sustained depending on the city’s budget, “the amount of local funding available to them to fund municipal projects without state funding or financial assistance, their ability to raise new revenues to offset the loss of state funding . . . [and] their past reliance on state funding or financial assistance for municipal construction project[s].” 127
Id.
Id.
The dissenting judge argued that even without the evidence that the majority sought, the statute constituted coercion because it “plainly robs municipalities” of any real choice other than to apply the prevailing wage law to purely municipal projects.129
Id. at 392.
Id. at 381.
See City of El Centro, 200 Cal. Rptr. at 384–85.
See id. at 386.
A growing number of state courts have sidestepped the question of whether punitive preemptive financial penalties are constitutional. Instead, courts tend to rest their decisions on procedural grounds. For example, in City of Toledo v. State,133
72 N.E.3d 692, 699 (Ohio Ct. App. 2017) [hereinafter Toledo I], rev’d, 110 N.E.3d 1257 (Ohio 2018) [hereinafter Toledo II].
See Toledo I, 72 N.E. 3d at 699.
Toledo II, 110 N.E.3d at 1259.
See Toledo I, 72 N.E. 3d at 694.
In 2015, a trial court enjoined the enforcement of certain provisions of S.B. 342. While the state’s appeal was pending, the General Assembly passed House Bill 64, the state’s biennial budget bill, which conditioned “a municipality’s receipt of certain state funds on compliance with the traffic law photo-monitoring provisions in S.B. 342 that the trial court found to be unconstitutional.”137
Id.
Id.
See id.
While the Supreme Court of Ohio ultimately held that the trial court lacked the authority to enjoin the H.B. 64 spending provisions, the Ohio Court of Appeals considered a number of financial coercion arguments when first upholding the trial court’s injunction. Particularly, the state argued, “that the budget bill provisions merely set up financial incentives using discretionary state funds to encourage municipalities to comply with S.B. 342.”140
Id. at 698.
See Brief. for Defs-Appellants at 17–20, Toledo I, 72 N.E.3d 692, 699 (Ohio Ct. App. 2017) rev’d, Toledo II, 110 N.E.3d 1257 (Ohio 2018).
Id. at 20 (original emphasis).
See Toledo I, 72 N.E.3d at 699.
The Arizona Supreme Court similarly sidestepped the constitutionality of the punitive mechanism of A.R.S. § 41-194.01. The punitive mechanism of the statute terminates the transfer of state funding to localities for any local law that the attorney general determines is preempted and which the local government fails to promptly repeal.144
See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
See Briffault, supra note 12, at 2005.
State ex rel. Brnovich v. City of Tucson, 399 P.3d 663, 672 (Ariz. 2017).
See id.
III. Localities Retain an Inherent Boundary of Legal Authority
TOPExisting legal doctrine does not provide a strong defense of local boundaries. Nevertheless, there are doctrinal tools and arguments that create a boundary of local authority and may protect governments from fiscal sanctions. Broader protection will require new approaches to state-local relations, for which this Comment argues.
A. Federalism Endows Localities with a Boundary of Local Authority
TOPMunicipal rights can be found in existing state law. Under Hunter,148
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).
See Richard Briffault, Our Localism: Part I – The Structure of Local Government Law, 90 Colum. L. Rev. 1, 88–91 (1990); but see, Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 Harv. C.R. C.L. L. Rev. 1 (2012) (arguing that as a doctrine of substantive constitutional law, Hunter is incompatible with the moden rule against general federal common law that the Court articulated in Erie v. Tompkins, 304 U.S. 64, 78–79 (1938), and that Hunter is functionally overruled as the Court has repeatedly and silently departed from its holding).
See Briffault, supra note 15, at 9.
See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 552 (1986).
See J.B. Whitfield, Amending State Constitutions, 11 Mich. L. Rev. 302–07 (1913); Brennan, supra note 151.
Municipalities also find rights in federal law that are entirely distinct from state authority. The line of doctrine that utilizes “the Fourteenth Amendment and the Commerce Clause . . . to limit city power” undermines the Hunter proposition that a city derives its constitutional authority solely from states.153
Frug, supra note 15, at 1063.
See Josh Bendor, Municipal Constitutional Rights: A New Approach, 31 Yale L. Pol’y Rev. 389, 394–95 (2013).
364 U.S. 339 (1960).
See Bendor supranote 154, at 391.
Federal law recognizes that municipalities have some constitutional rights vis-à-vis the state. In Romer v. Evans,157
517 U.S. 620, 620–21, 632 (1996).
Id.
See Bendor, supra note 154, at 418.
469 U.S. 24 (1984); but see Equal. Found. of Greater Cincinnati v. City of Cincinnati, 128 F.3d 239 (6th Cir. 1997) (holding that purely local measures that simply refuse special privileges under local law for a non-suspect group of citizens isn’t barred under Romer unless it fails the rational basis test. The court distinguished City of Cincinnati from Romer on the grounds that Romerinvolved an issue of state controlling localities, whereas City of Cincinnati involved a local decision that was rationally related to a valid city interest).
50 Acres, 469 U.S. at 455.
See id. at 454–58.
The Supremacy Clause also constrains state power.163
See Briffault, supra note 149.
469 U.S. 256 (1985).
See id.
See Bendor, supra note 154, at 422–23.
While there is no cohesive doctrine establishing the precise contours of the constitutional rights of municipalities vis-à-vis states, case law confirms that municipalities can exercise constitutional rights as entities distinct from their states. Moreover, Congress also interprets Hunter regularly: implementing federal policy through cooperative federal-local initiatives and funding cities directly through intergovernmental transfers.167
See, e.g., Consolidated Appropriations Act of 2023, H.R. 2617, 117th Cong. (2023) (codifying State and Local Fiscal Relief Funds in scattered sections); Coronavirus State and Local Fiscal Recovery Funds, 86 FR 26786 (May 17, 2021) (adopting a rule that implements funding to provide state, local, and Tribal governments with financial resouces); Erin Durkin, Federal spending bill to include $800M in grants for cities dealing with migrant crisis, Politico (Dec. 20, 2022), https://www.politico.com/news/2022/12/20/omnibus-spending-bill-migrants-00074785[https://perma.cc/FP6K-ULLM].
Gomillion v. Lightfood, 364 U.S. 343 (1960) (describing Hunter’s “seemingly unconfined dicta”).
Bendor, supra note 154, at 425.
Seeid.
IV. Punitive Preemptive Financial Sanctions are Distinct from Other Forms of Preemption
TOPStates enjoy the right of preemption to ensure state policy supremacy. State legislative actions are constrained by (1) federal constitutional protections for municipalities per se, (2) general state provisions that constrain lawmaking, such as single-subject rules and restrictions on special legislation, and (3) grants of power to localities. As states can enact broad express preemption statutes, attaching financial sanctions to preemption mechanisms is unnecessary to ensure state policy supremacy. Instead, punitive financial mechanisms transform the preempting legislation into a mechanism that infringes on the local capacity for self-governance. State interference in local democracy is particularly concerning as preemption is more prevalent in the South, where state law is passed by majority-white legislatures to target cities whose residents are majority people of color.171
SeeHunter Blair et al., Preempting Progress, Econ. Pol’y Inst. (Sept. 30, 2020).
A. Fiscal Sanctions Pierce the Boundary of Authority by Reordering Municipal Budgets
TOPThe material impact of fiscal sanctions functionally forces local governments to reorder their municipal budgets. Except for extreme circumstances, a state is not involved in local budget decisions,172
See Clayton P. Gillette, Dictatorships for Democracy: Takeovers of Financially Failed Cities, 114 Colum. L. Rev. 1373 (2014).
See Richard Briffault, Town of Telluride v. San Miguel Valley Corp.: Extraterritoriality and Local Autonomy, 86 Denv. U. L. Rev. 1311, 1322 (2009). Briffault explains that when externalities spill across jurisdictions, it is “less troublesome” from a local democracy perspective for a higher level of government to intervene in local decisions.
See id.
In order to illustrate the conventional behavior of states on issues of municipal budgeting, consider state takeover boards of financially distressed cities. Takeover boards are created at the state level, and their members are typically appointed by state officials.175
See Gillette, supra note 172, at 1397–400.
See Gillette, supra note 172, at 1397–400; see also Eric Weiner, What Happens When City Hall Goes Bankrupt, Nat’l Pub. Radio (Feb. 28, 2008), https://www.npr.org/templates/story/story.php?storyId=60740288[https://perma.cc/5YV3-LHTW].Municipalities rarely file for bankruptcy. From 1980 to 2008, thirty-two cities and towns declared bankruptcy. During the Great Recession, five municipalities filed for bankruptcy: Detroit, Michigan; Stockton, California; Central falls, Rhode Island; Harrisburg, Pennsylvania; Jefferson County, Alabama.
Gillette, supra note 172, at 1383–85.
Id. at 1383–85
Id. at 1391–92.
Id. at 1391–92.
Clayton Gillette’s seminal article provides a descriptive account of the behavior of financially distressed cities and suggests an analytical framework to explain the state’s cautious pattern of behavior. First, the state’s prudent behavior likely reflects the fact that takeover boards impose fiscal regimes not selected by residents.181
Id. at 1398.
Gillette, supra note 172, at 1399.
Id. at 1379; see also Michelle Wilde Anderson, Democratic Dissolution: Radical Experimentation in State Takeovers of Local Governments, 39 Fordham Urb. L.J. 577, 606 (2012); see also Richard C. Schragger, Democracy and Debt, 121 Yale L.J. 860, 879 (2012).
See Clayton P. Gillette, Fiscal Federalism, Political Will, and Strategic Use of Municipal Bankruptcy, 79. U. Chi. L. Rev. 281, 302–08 (2012).
See Weiner, supra note 176.
Gillette, supra note 172, at 1412.
Now, consider that the state’s punitive fiscal sanctions for local governments often operate to impose overwhelming fines on localities or cut off state revenue-sharing fines. At the most extreme, states threaten to cut all state funds to any local entity.187
See Iowa Code § 825.1–.11 (2017); see Tenn. Code Ann. § 4-1-412 (2019); see Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
See Pratheepan Gulasekaram et al., Anti-Sanctuary and Immigration Localism, 119 Colum. L. Rev. 837, 854 (2019).
The animating principles that may empower state takeover boards to pierce the boundary of local authority to reorganize municipal budgets do not apply to the punitive fiscal sanctions on preempting legislation. Formally, punitive fiscal sanctions do not strip localities of their ability to set their budgets. Functionally, however, the locality faces significant budget cuts. The locality is therefore unable to pursue policy and service priorities that it would have otherwise been able to do, if not for the state sanctions. This frustrates the ability of residents to select the true range of goods and services that they wish to pursue. Moreover, the state interests in preventing the state’s “degree of concern” and the “external consequences of local action” do not rise to the level “sufficient to justify the state’s trump of local policies.”189
Gilette, supra note 172, at 1412.
See Ariz. Rev. Stat. Ann. § 35–121.01 (2019).
See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
The behavior of states when their municipalities face fiscal distress suggests that the state should not reorder municipal budgets through legislation while there are other tools available. If the goal of broad express preempting legislation is to ensure that there is regulatory uniformity (or in some cases, no regulation at all), then the state has no need to reorder the finances of cities in order to attain this desired result. Judicial review provides procedures for appropriate resolutions of any conflict arising from preemption. Moreover, “there is no evidence to suggest that local governments have ever defied a judicial declaration of state preemption.”192
Davidson & Reynolds, supra note 41, at 22.
V. Legal Challenges to Punitive Preemptive Fiscal Sanctions
TOPNullifying state provisions that financially penalize local governments for preemption violations is a difficult task. Nonetheless, it is a legal endeavor that is worth pursuing given theories of fiscal federalism and the political virtues of local governments. Fiscal federalism arguments support the idea that fiscal decisions should be made at the lowest level of government due to responsiveness and efficiency concerns.193
See Oats, supra note 6.
Warren Magnusson, Protecting the Right of Local Self-Government, 38 Canadian J. Pol. Sci. 897, 916 (2005) (quoting John Stuart Mill).
See Gillette, supra note 184.
Among the many localism arguments advanced is the political account that localities are more responsive to their residents196
See Gerken, Forward: Federalism All the Way Down, 124 Harv. L. Rev. 4, 23–24; 43–44 (2010).
Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1130 (2007).
See generally Luke Fowler & Stephanie L. Witt, State Preemption of Local Authority: Explaining Patterns of State Adoption of Preemption Measures, 49 Publius: J. Fed. 3, 540–59 (2019).
Additionally, the devolution of authority to smaller government units creates more opportunities for policy experimentation and effective problem-solving. In essence, localities may serve as laboratories of democracy.199
See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“[A] single courageous State may . . . serve as a laboratory; and try novel social and economic experiments risk to the rest of the country.”).
Fiscal sanctions do little more than serve as an expressive function for state governments. Despite offering limited benefits, fiscal sanctions serve to frustrate principles of government responsiveness and policy tailoring. Excessive penalties for local governments, such as the withdrawal of state shared revenue and bond posting requirements, undermine the ability and willingness of local governments to undertake the lawmaking powers granted in home rule systems. In some cases, these outcomes can also apply to Dillon’s Rule localities if the state policy implicates those lawmaking powers specifically granted to the locality through the Constitution.
A. Conditioning General Revenue Coerces Local Governments
TOPFunctionally, states are utilizing financial sanctions in punitive preemption statutes to condition the receipt of general revenue state funds on compliance with broad deregulatory preemptive statutes. The punitive fiscal sanctions force localities to either comply with the entire field of preempting state legislation or to relinquish funds.
Consider the punitive mechanism of Section 41–194.01 of the Arizona Revised Statutes, which terminates state aid to localities for any local law that the state attorney general determines is preempted and which the local government fails to repeal.200
See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
SeeBriffault, supra note 12, at 2006–07.
See Tim Steller, Steller: Mesa lawmaker bullies Bisbee over plastic bag ban, Ariz. Daily Star (Oct. 3, 2017), https://tucson.com/news/local/govt-and-politics/steller-mesa-lawmaker-bullies-bisbee-over-plastic-bag-ban/article_3de46860-a881-5cfe-8fdb-2ce51099c01b.html[https://perma.cc/BW3F-WHDT].
As the Court articulated in NFIB, intergovernmental coercion arises when a subordinate organ of government is not able to make a knowing and voluntary choice with respect to the benefits being offered by the more dominant organ of government.203
See City of El Centro v. Lanier, 200 Cal. Rptr. 3d 376, 390–91 (2016) (J. Benke, dissenting).
Briffault, supra note 12, at 2016–17.
Cities rely on states for funding. An estimated thirty-five percent of cities’ total revenue comes from state governments, while only four percent comes from the federal government.205
See Gulasekaram et al., supra note 188.
See David E. Wildasin, Intergovernmental Transfers to Local Governments, in Municipal Revenues and Land Policies 89 (Gregory K. Ingram & Yu-Hung Hong ed., 2009).
Id.
Many of the animating principles that restrict federal coercion of states through spending power can apply to localities. Unlike states, municipalities do not enjoy their own status as independent sovereigns in the federal system. Nonetheless, as previously discussed, localities do enjoy some independent legal status that remains distinct from states. Moreover, citizens conceptualize municipalities and states as distinct polities. When the state penalizes localities through fiscal sanctions, the state frustrates political accountability. The practice of attaching fiscal sanctions to state preempting statutes results in local officials forced to respond entirely to state manufactured policy choices. In doing so, local officials cease to act in their political capacity and instead carry out the orders of the state legislature. As a result, voters do not know which political body or official to hold accountable. Voters may credit or blame local officials for decisions made by state officials.208
See Haney, supranote 85, at 583–84 (2013).
VI. Conclusion
TOPFiscal sanctions are an inappropriate remedy to an imaginary problem. States that are enacting these statutes seek to punish localities from subverting preemption statutes. Yet, this problem does not exist because judicial review provides an adequate check on any conflict. If the purpose of express preempting legislation is to ensure that there is regulatory uniformity across the state, then the state has no need to financially sanction cities in order to achieve this objective. Assuming the state has its standard preemption power, the local law that is in conflict with state law is invalid and no direct fine on the locality would be necessary.
The punitive financial sanction mechanism, therefore, suggests only two possible state purposes. First, the direct fining provision may be an expressive vehicle and signal the state’s commitment to preempt. Alternatively, the fiscal sanction may implicitly signal that the state is not sure whether it has preemption power, but that defiance or judicial challenge to the State Legislature’s determination of preemption authority, will be costly. As such, these punitive financial sanctions do nothing more than punish cities for policy experimentation and freeze judicial review. While the legal mechanism of preemption remains structurally unchanged, these punitive preemption statutes serve to enlarge state power by stripping localities of an inherent local authority. Coercive financial mechanisms that are attached to preempting legislation are therefore unconstitutionally coercive as they functionally force local governments to relinquish core elements of their sovereignty.
- 1Seegenerally Richard C. Schragger, Localism All the Way Up: Federalism, State-City Conflict, and the Urban-Rural Divide, 2021Wis. L. Rev. 1283 (2021).
- 2See id.; see generally Jacob Grumbach, Laboratories Against Democracy 97–148 (2022).
- 3See Ronald Brownstein, ‘Breaking Point’: Why the Red State/Blue City Conflict is Peaking Over Masks, CNN (Aug. 17, 2021), https://www.cnn.com/2021/08/17/politics/2020-census-red-states-blue-cities[https://perma.cc/JEX4-QU28];Jasmine C. Lee et al., What Are Sanctuary Cities?, N.Y. Times (Sept. 2, 2016), https://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities.html[https://perma.cc/4QWW-QJLP];see Brenna Goth & Ayanna Alexander, ‘Defund the Police’ in Cities Face Ire of State GOP Lawmakers, Bloomberg Law (Mar. 16, 2021), https://news.bloomberglaw.com/social-justice/defund-the-police-in-cities-faces-ire-of-state-gop-lawmakers[https://perma.cc/KU9C-37YP].
- 4See Hannah Arendt, On Revolution 235–43 (1963).
- 5See id.
- 6See Wallace Oats, An Essay on Fiscal Federalism, 37 J. of Econ. Literature 1120, 1121–26 (1999).
- 7See John Stuart Mill, Considerations on Representative Government 273–93 (1861).
- 8U.S. Const. amend. X; see Joshua S. Sellers & Erin A. Scharff, Preempting Politics: State Power and Local Democracy, 72 Stan L. Rev. 1361, 1371–72 (2020).
- 9207 U.S. 161 (1907).
- 10Id. at 178–79.
- 11See Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).
- 12See id. at 1220–22; see generally Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 2022 (2018).
- 13See Briffault, supra note 12, at 1997.
- 14See id. at 1999–2008.
- 15See David Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487, 490 (1999); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1059 (1980); see Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 15–18 (2000); see Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 Am. U. L. Rev. 369 (1985).
- 16See Briffault, supra note 12.
- 17See John F. Dillon, Commentaries on the Law of Municipal Corporations 449–50 (1911); see Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & Pol. 187, 198 (2005).
- 18See Dillon, supra note 17, at 449–50.
- 19See John G. Grumm & Russell D. Murphy, Dillon’s Rule Reconsidered, 416 Annals Am. Acad. Pol. & Soc. Sci. 120, 127 (1974) (explaining that historically, state restrictions on localities “to curtail the at times reckless municipal investments in internal improvements, railroads included”).
- 20See Colum. L. Rev. Ass’n, Home Rule and the New York Constitution, 66 Colum. L. Rev. 1145, 1149 n.22 (1966).
- 21See Grumm & Murphy, supra note 19, at 121.
- 22See id.
- 23See Dillon, supra note 17, at 448–49.
- 24See Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law 289–90, 327–28 (8th ed. 2016).
- 25See Colum. L. Rev. Ass’n, supra note 20, at 1146 (1966); see alsoDavid O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment—Part I, 1969 Utah L. Rev. 287, 300 (1969).
- 26See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1354 (2009); Lynn Baker, Clayton P. Gillette & David Schleicher, Local Government Law, Cases and Materials 318–22, 347–57, 362–70 (6th ed. 2022).
- 27See Rachel Simon, The Firearm Preemption Phenomenon, 43 Cardozo L. Rev. 1441, 1450 (2022).
- 28See generally Gordon L. Clark, Judges and the Cities: Interpreting Local Autonomy 78–80 (1985).
- 29See id.
- 30See National League of Cities, Principles of Home Rule for the 21st Century, 100 N.C. L. Rev. 1329, 1335 (2022) (citing Am. Mun. Ass’n, Model Constitutional Provisions for Municipal Home Rule 6 [1953]).
- 31See Sarah Fox, Home Rule in an Era of Local Environmental Innovation, 44 Ecology L. Q. 575, 590 (2017).
- 32See Briffault, supra note 12, at 2011–14.
- 33See Lori Riverstone-Newell, The Rise of State Preemption Laws in Response to Local Policy Innovation, 47 Publius J. Federalism 403 (2017).
- 34See Colum. L. Rev. Ass’n, supra note 20, at 1146 (1966).
- 35See Briffault, supra note 12, at 1997.
- 36See Schragger, supra note 11, at 1181–82.
- 37Simon, supra note 27, at 1444.
- 38See Rachel Proctor May, Punitive Preemption and the First Amendment,55 San Diego L. Rev. 1, 7–8 (2018).
- 39See generally Amer. Fin. Serv. Ass’n v. City of Oakland, 104 P.3d 813 (Cal. 2005); see also Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 36–37 (Colo. 2000).
- 40See Simon, supra note 27, at 1449–50.
- 41See Nestor Davidson & Laurie Reynolds, The New State Preemption, the Future of Home Rule, and the Illinois Experience, 4 Ill. Mun. Pol’y J. 19 (2019); see generally Henry Garber, The Shackling of the American City, Slate (Sept. 9, 2016), https://slate.com/business/2016/09/how-alec-acce-and-pre-emptions-laws-are-gutting-the-powers-of-american-cities.html[https://perma.cc/X48U-3EUX].
- 42See Briffault, supra note 12, at 2007–08.
- 43See Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—And the Nation 62 (2019).
- 44Id. at 240.
- 45See id. at 240–42.
- 46See Wis. Stat § 103.007 (2017).
- 472015 Mich. Pub. Acts 64 (codified at Mich. Comp. Laws §§ 123.1381–.1396 (2018)).
- 48See Riverstone-Newell, supra note 33, at 406; seealso Hertel-Fernandez, supra note 43, at 62 (analyzing Uber and Airbnb’s lobbying to pass preemptive state legislation to “make it harder [if not impossible] for localities to pass labor market measures, including minimum wage hikes, which exceed state law.”).
- 49See Staff of H.R. Crim. Just. Subcomm., Regulation of Firearms and Ammunition Analysis, H.R. 2011-45, Reg. Sess., at 1 (Fla. Feb. 2011).
- 50See Staff of H.R. Jud. Comm., Regulation of Firearms and Ammunition Analysis, H.R. 2011-45, Reg. Sess., at 1 (Fla. June 2011).
- 51See Fla. Stat. § 790.33 (2011).
- 52See Schragger, supra note 11, at 1182.
- 53See Briffault, supra note 12, at 2002–08.
- 54Fla. Stat. § 790.33.
- 55Staff of H.R. Jud. Comm., Regulation of Firearms and Ammunition Analysis, Fla. H.R. 45 at 1.
- 56Marcus v. Scott, 2014 WL 3797314, at *1–2 (Fla. Cir. Ct. June 02, 2014).
- 57Id.
- 58See id. at *3–4.
- 59See id., aff’d Fried v. State, 2023 WL 309000 (Fla. Jan. 19, 2023).
- 60See Fla. Stat. § 790.33 (2011) (creating a $100,000 civil cause of action against “any county, agency, municipality, district or other entity . . . [that] caused the violation” of the state preemption statute); see Ariz. Rev. Stat. Ann. § 13–3108 (2017) (empowering judges to impose a $50,000 civil penalty on any locality that “knowingly and willfully violate[s]” the state’s firearm preemption statute); see Ala. Code § 41-9-230 (2017) (directing the Alabama Attorney General to impose a $25,000 fine on any local government that removes an “architecturally significant . . . monument” that is more than 40 years-old, which functionally applies to cities seeking to remove Confederate monuments).
- 61Iowa Code § 825.1–.11 (2017).
- 62See id.
- 63See Tenn. Code Ann. § 4-1-412 (2019) (enacting legislation that contains a punitive measure resulting in the loss of state grants for economic and community development for a period of five years if a locality violates a Tennessee state statute prohibiting the removal of Confederate monuments).
- 64See Ariz. Rev. Stat. Ann. § 41–194.01 (2017) (enacting legislation that provides for the cutoff of state aid to localities for any local law that the state Attorney General determines is preempted and which the local government then fails to repeal).
- 65See Ariz. Rev. Stat. Ann. § 35–121.01 (2019).
- 66Id.
- 67See Bob Christie, Judge Sides with Flagstaff Over Arizona in Minimum Wage Fight, AP (Oct. 11, 2021), https://www.azcentral.com/story/news/local/arizona/2021/10/11/judge-sides-flagstaff-over-arizona-minimum-wage-fight/6097106001/[https://perma.cc/5DG7-95LV].
- 68See H. B. 1900, 87th Leg., Reg. Sess. (Tex. 2021) (enacted).
- 69See Robert Garrett, Abbott Pushing Legislation to Strip Cities of Local Sales Tax Funds if They ‘Defund the Police,’ Dall. Morning News (Jan. 14, 2021), https://www.dallasnews.com/news/politics/2021/01/15/abbott-considers-bill-to-strip-cities-of-local-sales-tax-funds-if-they-defund-the-police/[https://perma.cc/TTM4-ZQYW](discussing Governor Abbott’s statement that “one of his major goals for the legislative session . . . is ‘to make it fiscally impossible’ for a city to slash funding of police’”).
- 70See H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, H.R. 87-23848, Reg. Sess., at 1 (Tex. 2021).
- 71See id. at 2.
- 72H. B. 1900, 87th Leg., Reg. Sess. (Tex. 2021) (enacted).
- 73See generally, Zoltan L. Hajnal, America’s Uneven Democracy: Turnout, Race, & Representation in City Politics 70–100 (2009).
- 74H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, Tex. H.R. 23848 at 3.
- 75See Garrett, supra note 69.
- 76See H.R. State Aff. Comm., C.S.H.B. 1900 Bill Analysis, Tex. H.R. 23848 at 3.
- 77See id. at 2.
- 78See Briffault, supra note 12, at 2016–17.
- 79567 U.S. 519, 581–82 (2012) (hereinafter NFIB).
- 80Id. at 577–78.
- 81Id. at 581–82.
- 82Id. at 577.
- 83Id.
- 84See New York v. United States, 505 U.S. 144, 168 (1992).
- 85Patrick Haney, Coercion by the Numbers, 64 Case Western L. Rev. 2, 583–84 (2013).
- 86See id.
- 87See South Dakota v. Dole, 483 U.S. 203, 207–208 (1987); NFIB, 567 U.S. at 580–81.
- 88NFIB, 567 U.S. at 584–85.
- 89See id. at 581–82.
- 90Id.
- 91See id. at 580–81.
- 92See id.
- 93Haney, supra note 85, at 586–87.
- 94See NFIB, 567 U.S. at 584 (2012).
- 95See id. at 682–83 (Scalia, Kennedy, Thomas, and Alito, J.J., dissenting).
- 96Id.
- 97Id. at 682.
- 98Id. at 680.
- 99Reply Brief of State Petitioners on Medicaid at 19, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (No. 11-400).
- 100See NFIB, 567 U.S. at 644–45 (Ginsburg, J., concurring in part and dissenting in part).
- 101See id.
- 102See Haney, supra note 85, at 589–90.
- 103See id.
- 104NFIB, 567 U.S. at 643–44 (Ginsburg, J, concurring in part and dissenting in part).
- 105See Mark Seidenfeld, Bounds of Spending Power, 61 Ariz. L. Rev. 1, 16–17 (2018).
- 106NFIB, 567 U.S. at 627–28 (Ginsburg, J., concurring in part and dissenting in part).
- 107See Goth & Alexander, supra note 3.
- 108See Fla. Carry, Inc. v. City of Tallahassee, 212 So. 3d 452, 456 (Fla. Dist. Ct. App. 2017); see also Briffault, supra note 12, at 2014–15.
- 109See Proctor May, supra note 38, at 12–13.
- 110City of Tallahassee, 212 So. 3d at 456; see Briffault, supra note 12, at 2014–15.
- 111See Simon, supra note 27, at 1501–3.
- 112See Proctor May, supra note 38.
- 113See Simon, supra note 27, at 1504.
- 114399 P.3d 663, 666 (Ariz. 2017).
- 115Ariz. Rev. Stat. Ann. § 41-194.01(A) (2017).
- 116See Simon, supra note 27, at 1506–07.
- 117State ex rel. Brnovich, 399 P.3d at 668.
- 118200 Cal. Rptr. 3d 376 (2016).
- 119Cal. Lab. Code § 1782 (2013).
- 120See City of El Centro, 200 Cal. Rptr. at 383–84.
- 121See id.
- 122See id. at 389.
- 123See id.
- 124Id. at 385.
- 125See NFIB, 567 U.S at 580 (2012).
- 126City of El Centro, 200 Cal. Rptr. at 385.
- 127Id.
- 128Id.
- 129Id. at 392.
- 130Id. at 381.
- 131See City of El Centro, 200 Cal. Rptr. at 384–85.
- 132See id. at 386.
- 13372 N.E.3d 692, 699 (Ohio Ct. App. 2017) [hereinafter Toledo I], rev’d, 110 N.E.3d 1257 (Ohio 2018) [hereinafter Toledo II].
- 134See Toledo I, 72 N.E. 3d at 699.
- 135Toledo II, 110 N.E.3d at 1259.
- 136See Toledo I, 72 N.E. 3d at 694.
- 137Id.
- 138Id.
- 139See id.
- 140Id. at 698.
- 141See Brief. for Defs-Appellants at 17–20, Toledo I, 72 N.E.3d 692, 699 (Ohio Ct. App. 2017) rev’d, Toledo II, 110 N.E.3d 1257 (Ohio 2018).
- 142Id. at 20 (original emphasis).
- 143See Toledo I, 72 N.E.3d at 699.
- 144See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
- 145See Briffault, supra note 12, at 2005.
- 146State ex rel. Brnovich v. City of Tucson, 399 P.3d 663, 672 (Ariz. 2017).
- 147See id.
- 148Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).
- 149See Richard Briffault, Our Localism: Part I – The Structure of Local Government Law, 90 Colum. L. Rev. 1, 88–91 (1990); but see, Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 Harv. C.R. C.L. L. Rev. 1 (2012) (arguing that as a doctrine of substantive constitutional law, Hunter is incompatible with the moden rule against general federal common law that the Court articulated in Erie v. Tompkins, 304 U.S. 64, 78–79 (1938), and that Hunter is functionally overruled as the Court has repeatedly and silently departed from its holding).
- 150See Briffault, supra note 15, at 9.
- 151See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 552 (1986).
- 152See J.B. Whitfield, Amending State Constitutions, 11 Mich. L. Rev. 302–07 (1913); Brennan, supra note 151.
- 153Frug, supra note 15, at 1063.
- 154See Josh Bendor, Municipal Constitutional Rights: A New Approach, 31 Yale L. Pol’y Rev. 389, 394–95 (2013).
- 155364 U.S. 339 (1960).
- 156See Bendor supranote 154, at 391.
- 157517 U.S. 620, 620–21, 632 (1996).
- 158Id.
- 159See Bendor, supra note 154, at 418.
- 160469 U.S. 24 (1984); but see Equal. Found. of Greater Cincinnati v. City of Cincinnati, 128 F.3d 239 (6th Cir. 1997) (holding that purely local measures that simply refuse special privileges under local law for a non-suspect group of citizens isn’t barred under Romer unless it fails the rational basis test. The court distinguished City of Cincinnati from Romer on the grounds that Romerinvolved an issue of state controlling localities, whereas City of Cincinnati involved a local decision that was rationally related to a valid city interest).
- 16150 Acres, 469 U.S. at 455.
- 162See id. at 454–58.
- 163See Briffault, supra note 149.
- 164469 U.S. 256 (1985).
- 165See id.
- 166See Bendor, supra note 154, at 422–23.
- 167See, e.g., Consolidated Appropriations Act of 2023, H.R. 2617, 117th Cong. (2023) (codifying State and Local Fiscal Relief Funds in scattered sections); Coronavirus State and Local Fiscal Recovery Funds, 86 FR 26786 (May 17, 2021) (adopting a rule that implements funding to provide state, local, and Tribal governments with financial resouces); Erin Durkin, Federal spending bill to include $800M in grants for cities dealing with migrant crisis, Politico (Dec. 20, 2022), https://www.politico.com/news/2022/12/20/omnibus-spending-bill-migrants-00074785[https://perma.cc/FP6K-ULLM].
- 168Gomillion v. Lightfood, 364 U.S. 343 (1960) (describing Hunter’s “seemingly unconfined dicta”).
- 169Bendor, supra note 154, at 425.
- 170Seeid.
- 171SeeHunter Blair et al., Preempting Progress, Econ. Pol’y Inst. (Sept. 30, 2020).
- 172See Clayton P. Gillette, Dictatorships for Democracy: Takeovers of Financially Failed Cities, 114 Colum. L. Rev. 1373 (2014).
- 173See Richard Briffault, Town of Telluride v. San Miguel Valley Corp.: Extraterritoriality and Local Autonomy, 86 Denv. U. L. Rev. 1311, 1322 (2009). Briffault explains that when externalities spill across jurisdictions, it is “less troublesome” from a local democracy perspective for a higher level of government to intervene in local decisions.
- 174See id.
- 175See Gillette, supra note 172, at 1397–400.
- 176See Gillette, supra note 172, at 1397–400; see also Eric Weiner, What Happens When City Hall Goes Bankrupt, Nat’l Pub. Radio (Feb. 28, 2008), https://www.npr.org/templates/story/story.php?storyId=60740288[https://perma.cc/5YV3-LHTW].Municipalities rarely file for bankruptcy. From 1980 to 2008, thirty-two cities and towns declared bankruptcy. During the Great Recession, five municipalities filed for bankruptcy: Detroit, Michigan; Stockton, California; Central falls, Rhode Island; Harrisburg, Pennsylvania; Jefferson County, Alabama.
- 177Gillette, supra note 172, at 1383–85.
- 178Id. at 1383–85
- 179Id. at 1391–92.
- 180Id. at 1391–92.
- 181Id. at 1398.
- 182Gillette, supra note 172, at 1399.
- 183Id. at 1379; see also Michelle Wilde Anderson, Democratic Dissolution: Radical Experimentation in State Takeovers of Local Governments, 39 Fordham Urb. L.J. 577, 606 (2012); see also Richard C. Schragger, Democracy and Debt, 121 Yale L.J. 860, 879 (2012).
- 184See Clayton P. Gillette, Fiscal Federalism, Political Will, and Strategic Use of Municipal Bankruptcy, 79. U. Chi. L. Rev. 281, 302–08 (2012).
- 185See Weiner, supra note 176.
- 186Gillette, supra note 172, at 1412.
- 187See Iowa Code § 825.1–.11 (2017); see Tenn. Code Ann. § 4-1-412 (2019); see Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
- 188See Pratheepan Gulasekaram et al., Anti-Sanctuary and Immigration Localism, 119 Colum. L. Rev. 837, 854 (2019).
- 189Gilette, supra note 172, at 1412.
- 190See Ariz. Rev. Stat. Ann. § 35–121.01 (2019).
- 191See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
- 192Davidson & Reynolds, supra note 41, at 22.
- 193See Oats, supra note 6.
- 194Warren Magnusson, Protecting the Right of Local Self-Government, 38 Canadian J. Pol. Sci. 897, 916 (2005) (quoting John Stuart Mill).
- 195See Gillette, supra note 184.
- 196See Gerken, Forward: Federalism All the Way Down, 124 Harv. L. Rev. 4, 23–24; 43–44 (2010).
- 197Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1130 (2007).
- 198See generally Luke Fowler & Stephanie L. Witt, State Preemption of Local Authority: Explaining Patterns of State Adoption of Preemption Measures, 49 Publius: J. Fed. 3, 540–59 (2019).
- 199See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“[A] single courageous State may . . . serve as a laboratory; and try novel social and economic experiments risk to the rest of the country.”).
- 200See Ariz. Rev. Stat. Ann. § 41-194.01 (2017).
- 201SeeBriffault, supra note 12, at 2006–07.
- 202See Tim Steller, Steller: Mesa lawmaker bullies Bisbee over plastic bag ban, Ariz. Daily Star (Oct. 3, 2017), https://tucson.com/news/local/govt-and-politics/steller-mesa-lawmaker-bullies-bisbee-over-plastic-bag-ban/article_3de46860-a881-5cfe-8fdb-2ce51099c01b.html[https://perma.cc/BW3F-WHDT].
- 203See City of El Centro v. Lanier, 200 Cal. Rptr. 3d 376, 390–91 (2016) (J. Benke, dissenting).
- 204Briffault, supra note 12, at 2016–17.
- 205See Gulasekaram et al., supra note 188.
- 206See David E. Wildasin, Intergovernmental Transfers to Local Governments, in Municipal Revenues and Land Policies 89 (Gregory K. Ingram & Yu-Hung Hong ed., 2009).
- 207Id.
- 208See Haney, supranote 85, at 583–84 (2013).