All too often, in political disputes, one side will wave aloft a copy of the U.S. Constitution, apparently believing that, like a wizard’s wand, it will magically resolve all issues. That’s why it’s something of a relief to encounter a political disagreement about which that Constitution has nothing to say. I refer to the ongoing conflict over the appropriate amount of autonomy that cities should have, vis à vis their state governments.
The U.S. Constitution makes no mention of city government. State constitutions, therefore, spell out what sort of rights cities have, but those constitutions are often ambiguous, and squabbles between cities and states have been occurring, on a variety of issues, since the late nineteenth century. Over the past several years, however, the hostilities have had a distinctive character that deserves a closer examination.
In Idaho, that character is revealed, first, by the decision of several cities to pass ordinances forbidding discrimination against citizens on the basis of sexual orientation and identity — a decision that were spurred by, and in defiance of, the state Legislature’s refusal to enact a similar law. Then, more recently, the Idaho state Legislature passed legislation that pre-emptively banned any attempt by cities to raise the minimum wage within their jurisdictions, or to curtail the use of plastic bags by local stores.
It has been reported that Gov. Otter was initially reluctant to sign that anti-bag-ban-legislation, but changed his mind when he read a white paper published by an organization called the American City County Exchange (ACCE) that discussed something called “Dillon’s Rule.”
Dillon’s Rule is a legal judgment handed down by John F. Dillon, a federal judge, in 1872, and subsequently upheld by the U.S. Supreme Court, which asserts that municipal corporations are entirely the creation of states and have only those powers precisely granted to them by the states. It’s generally thought that the judgment was motivated by the then-prevalent corruption in city governments.
A contrary position, known as the Cooley Doctrine, was formulated by Thomas M. Cooley, Chief Justice of the Michigan Supreme Court, in 1878. He argued that cities have an inherent right to exist and to determine their own destinies. Under the banner of “home rule,” this doctrine was adopted by many states, though they often, confusingly, incorporated Dillon’s Rule into their constitutions as well.
Recent city-state conflicts have largely involved conservative state governments, and liberal city governments. They have also involved an organization called the American Legislative Exchange Council (ALEC) and an associated group, mentioned above, the ACCE. ALEC, whose membership is primarily made up of legislative politicians, governors, corporate executives, trade organizations and special interests, produces “model” bills for state legislatures, all of which are designed to promote business interests. The ACCE is, in theory, an organization to advocate for the interests of cities, towns and counties — also through the distribution of “model” ordinances — but it is highly conservative. Its stated purpose is “to advance limited government and free market principles,” hence, rather than trying to empower cities to address their problems, it recommends inaction and a reduction in local regulations.
With the support of ALEC and ACCE, a Milwaukee ordinance that required businesses to offer full-time workers annual paid sick days, was nullified by the state legislature; in North Carolina, Charlotte passed a law that permitted transgendered people to use public bathrooms that corresponded to their sexual identity, and the state nullified that law; Phoenix decided to forbid local pet stores to sell dogs from puppy mills. The state passed a law to invalidate the ordinance; in Kansas, cities were preemptively prevented from providing incentives for the placement of food markets in poor and underserved parts of town, and requiring that there be some low-cost housing units in new developments.
It has been a conservative tradition to proclaim that the more local the decision-making, the better. According to that tradition, overruling or preempting local regulations is not allowed. But that political principle, like so many others, is essentially just a slogan to be dragged out when convenient. It’s the content of laws that matters. When Ft. Wayne, Indiana, passed a conservative ordinance that went far beyond the state’s right-to-work law by subverting police and fire department unions, the state made no effort to nullify it.
In Idaho’s case, the preemptive laws mentioned above were simply copied from those of other states (the Idaho legislature is not noted for its originality), and were clearly intended to reassure the national chain stores and restaurants that they would not be inconvenienced by local regulations that complicated their corporate operations.
The lesson for us city-dwellers: Woe betide the Idaho city that tries to address its residents’ needs without due consideration for the welfare of corporate America.
Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.