Laboratories of Municipal Law

Laboratories of Municipal Law: Case Studies in Technological Innovation and Environmental Protection  

Cities are the new laboratories of democracy and it is important to utilize municipal law to empower municipalities as hubs of technological innovation and environmental protection. As sites of political innovation, cities have been locations of experiments in policy as well as invigorators of civic life. From an international law perspective, cities have become part of the cast of non-state actors. Yet they remain governmental actors that are forming cross-networks for greater collaboration and new exercises of power relationships. These cities are thus the locus of a new cosmopolitan citizenship divergent from the Westphalian nation-state. This is what is meant by the political innovation of the “right to the city.” 

In the context of the United States, municipal home rule is the doctrine by which cities are granted local autonomy and some degree of independence from state government. It is the Cooley Doctrine that interprets a vigorous local constitutionalism and envisions cities not as mere creatures of their state government but as places of equal responsibility in promoting Federal Constitutional rights. This interpretation provides an alternative to the trend in impeding innovation by way of state preemption of progressive local regulations. These laws seek to diminish the autonomy of municipalities.  

This article then examines case studies of the utilization of municipal law to empower cities as hubs of technological innovation as well as environmental protection. The home rule framework was designed to ensure that cities would have the ability to respond to their rapidly changing needs. This article proposes that by infusing home rule with an updated understanding of government obligations toward the environment as well as government autonomy to experiment with modes of local governance in order to spur economic development and technological innovation. 

• Local Political Innovation in Cities 

Many years ago, Justice Brandeis famously offered a defense of federalism in terms of the possibility that state autonomy provides for innovation. As he observed, “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Well, if the fifty states are laboratories for public policy formation, then surely the 3,000 counties and 15,000 municipalities provide logarithmically more opportunities for innovation, experimentation and reform. Thousands of local governments provide thousands of arenas for innovation and for testing the costs and benefits of those innovations.

• The Rise of Municipalities 

In an era of increased partisan gridlock among nation-states, ongoing democratic deficits in the international policymaking process, plummeting levels of trust in national leaders, and the failure of federal governments to solve our most pressing global problems,attention is shifting to a different set of actors: cities. Cities are not only more attuned to the needs of their electorate, more trusted than their national counterparts, more adept at getting things done, and less partisan when it comes to working across aisles and oceans, but they are also more ambitious in pushing forward bold, humanity-saving agendas. 

As national governments seem increasingly unable or unwilling to advance progressive policies at the international level, and as our shared global challenges grow more and more urgent––climate change, deepening inequality, the global migration crisis, shortages of affordable housing, infectious pandemics, democratic decay, and rising extremism–– cities are rising up and moving ahead with or without their national counterparts. In so doing, cities are gaining influence and assertiveness not only at the national level, but within international politics as well, and this reality is decisively shifting our traditional understandings of both international law and global politics. 

Formally and institutionally, cities have no voice, no official seat or platform––indeed, no meaningful existence––within the current international policymaking system. Yet, despite the many institutional, legal, and political barriers that exist to prevent cities from entering the international political arena, they are nevertheless finding ways to do so, and with increasing success. More specifically in their own right ––separate and independent of their federal counterparts – –in their efforts to influence and shape international agendas. This article explores the variety of creative and resourceful strategies that they have honed to do so, largely over the past two decades. These include: (1) coalescing together to form large networks, which engage in city or “glocal” diplomacy; (2) allying with well-connected and well-resourced international organizations; (3) gaining inclusion in UN multilateral agendas; (4) mirroring state-based coalitions and their high-profile events; (5) harnessing the language of international law (especially international human rights and environmental law) to advance agendas at odds with their national counterparts; and (6) adopting resolutions, declarations, and voluntarily

self-policed commitments––what I refer to as global law.

By jumping into the international political fray, cities are joining a chorus of other non-state actors, including civil society organizations, private corporations, regional coalitions, special interest groups, and a ream of others. 

Cities are piercing the states-only veil of international politics in ways arguably not seen in the post-Westphalian era. Using these six strategies, to be sure, cities are not the only “new” non-state actors to get involved in the state-centric world of international politics. However, unlike most of these other non-state actors, cities carry a unique status: They are still governmental. 

• The Right to the City 

French sociologist Henri Lefebvre coined the term the “right to the city” in 1968, describing it as a cry and a demand for a transformed and renewed right to life. Lefebvre envisioned a “bottom-up” approach to the making and shaping of the city and its spaces, in which “[o]nly groups, social classes and class fractions capable of revolutionary initiative can take over and realize to fruition solutions to urban problems.” This solution encompasses a “reconstruction of centrality” of the urban working class, whose appropriation, participation in, and habitation within the city Lefebvre argues has been “destroyed by a strategy of segregation and… the menacing form of centres of decision-making.” 

Purcell argues that the right to the city embodies an articulation of “alternative citizenship outside the Westphalian order, one that can be particularly useful in imagining a new politics through which to resist the current neoliberalization of the global political economy.” He sees what he terms the right to the global city as a key form of citizenship that is able to “radically expand and extend the scope of citizens’ control over the decisions that affect their material opportunity.”

• Municipal Home Rule in the United States

Although long governed by what is generally known as "Dillon's Rule," American municipalities have always desired at least some measure of local autonomy. They are regarded legally as occupying a subordinate status within the state; and, as a rule, they derive their existence and all their powers from the state constitution and state legisilative enactments. In the absence of state constitutional provisions to the contrary, they are subject wholly to state legislative control.' The principal legal device employed by them to obtain some measure of freedom from state control is generally known as "home rule." 

Home rule, which was first constitutionally authorized by Missouri in 1875, has been said to be the logical outgrowth of constitutional prohibitions on special legislation for cities, the most prevalent form of state legislative treatment of many of them until late in the nineteenth century.

Although no concrete evidence can be produced to measure precisely the value of home rule, various theoretical arguments can be advanced in its favor. 

First, to the extent that municipalities will adopt and exercise home rule powers, the state legislature and governor will have more time to devote to matters of state-wide importance. Following World War II, Maryland adopted home rule because local requests for legislation placed too great a burden on its state legislature." 

Second, home rule not only should decrease state meddling and interference in the internal affairs of cities, but also should lessen log-rolling or legisilative trading common in the enactment of much local legislation.

Third, it should allow municipalities to initiate immediate action to resolve their peculiarly local problems without waiting for state legislative authorization. This advantage possesses greatest significance in states with biennial legislative sessions. 

Fourth, it is sometimes believed that home rule cities possess more potential powers than non-home rule cities. Supreme Court of Alaska, for instance, has commented that Juneau “acquired greater legislative power upon becoming a home rule city." Moreover, in the realm of local taxation, an area some students of state and local government consider vital to the existence of home rule, only in California, and to some extent in Kansas, do home rule cities enjoy wide authority. Local taxation preceded adoption of home rule provisions, and authors of such provisions have been reluctant to include in them the power of taxation. In some instances, evidently to allay voter resistance due to fear of increased taxation, constitutional home rule provisions have expressly restricted or prohibited enlargement of local taxing authority.

Fifth, home rule may possess some psychological advantage in that it can foster a sense of civic responsibility in local citizenry. 

Last, in as much as municipalities usually acquire the legislation they consider necessary, it may be worthwhile in the first instance to grant them home rule. Home rule is in accordance with American tradition, since historically Americans have strongly believed, and still do in municipal home rule. 

• Cooley’s Doctrine for City Autonomy 

Too much of our daily experience with self-government occurs at the local level for us to dismiss localism as an embarrassing feature of constitutional democracy. Local governments are too central to the lives of too many people to serve as passive administrative agents of state majorities without an independent interest in enforcing constitutional norms. Local governments are also too intimately involved in resolving the central public questions of our time to be protected arenas for the aggregation of private preferences, free from constitutional obligations to resist central or private power.

True, the constitutional text does not mention the special role that local governments play in giving life to constitutional principles. As Thomas Cooley concluded more than a century ago, however, "[s]ome things are too plain to be written." Local governments, the political structures that govern our lives on a daily basis, may be the means through which we discover our constitutional rights. That, at least, is the promise of Cooley's City. It is a promise that constitutional doctrine would do well to fulfill.

The now-forgotten defense of localism that Cooley put forth is worth reconsideration for two reasons. First, Cooley's subtle analysis of the role that local governments could play in the constitutional framework deserves attention simply by virtue of the care with which it was offered. Second, Cooley was a key participant in the important late nineteenth-century debate over the role of local governments in our constitutional system, a debate that has renewed relevance in an era in which localism is increasingly a key component of the national governmental framework.

Cooley argued that local communities, by virtue of their familiarity with local needs, would play a critical extrajudicial role in securing what he termed "constitutional freedom" by forestalling state legislative efforts to favor private interests. Local governments would, if provided a measure of protection from state control, give particularized meaning to the substantive constitutional value of public impartiality that Cooley believed judges were often poorly positioned to enforce. In this way, Cooley embraced localism to give life to substantive constitutional values, even as his substantive constitutional commitments defined the scope of the local governmental autonomy that he recognized. 

This Article demonstrates that they should be read in conjunction with Washington v. Seattle School District No. 1, Papasan v. Allain, and Romer v. Evans, in which the Supreme Court enforced public constitutional values by striking down state attempts to control the political discretion of towns and cities.

The recognition of local constitutionalism would also afford local governments an important constitutional role in enforcing the Constitutional role that all other levels of government, as the Equal Protection Clause implicitly recognizes, are charged with fulfilling.

By broadening the range of permissible constitutional interpreters, local constitutionalism might broaden the range of constitutional protections. It would, at the least, engage diverse local communities directly in the public practice of constitutionalism and force states to confront the substantive constitutional consequences of their assertions of control over the communities they claim to have created. Thus, regardless of the degree to which such a doctrine would in the end protect local governmental independence from state control, it would remind local governments in a direct way that they are ultimately creatures of the Federal Constitution, and not simply creatures of their states. 

• Impeding Innovation: State Preemption of Progressive Local Regulations 

This section examines the limited power of cities and their relationship with states, focusing on the development of “home rule,” a term used to describe state constitutional or legislative schemes designed to empower local governments. It further discusses the nature of state preemption of local regulations. Finally, it observes the role of local governments within federalism and localism theories, with a particular emphasis on partisan dynamics. 

This is an analysis of trends in the most recent wave of preemptive legislation. It assesses the areas in which preemption laws are focused as well as new preemption tactics, which are becoming increasingly homo­gen­ized across states due to nationwide political efforts. It then high­lights the troublesome implications of these laws. It asserts that state preemption restricts the power of local governments, threatens progres­sive innovation, and interferes with the democratic process. Finally, possible solutions for rebutting the most troublesome preemption laws, focus on the role of courts and the public.

Although the patchwork argument comes up across policy areas as a justification for preempting local laws, no systematic evidence exists to support claims that a patchwork of local laws has harmful effects. Efforts in favor of preemption that use a patchwork argument tend to refer to overall costs of the regulation and not to the marginal costs of varying compliance. Preemption debates around labor laws (paid sick leave, minimum wage, etc.) and consumer laws (plastic bags in particular) were more likely to specify the marginal costs of varying regulation, although even here, the costs themselves were rarely specified. Pro-preemption arguments have also been made to the effect that a patchwork of local laws creates business climate uncertainty or produces regional or state-level market distortions. However, except for some research on regional distortions of local housing regulations, these arguments tend to lack even anecdotal supporting evidence.

• Innovation Zones: Local Governance for Technological Innovators 

Under Nevada’s Innovation Zone proposal, any private sector applicant pursuing emerging technologies such as blockchain, autonomous vehicles, renewable energy and artificial intelligence would be allowed to develop a mixed-use community, so long as it clears minimum investment and greenfield land requirements. Gradually gaining control over schools, infrastructure, utilities and other public services, the tech-backed local government would eventually have powers rivaling a county. 

In his recent remarks, Nevada Governor Sisolak took pains to fend off comparisons to company towns of yore, stating that innovation zones would be subject to the same regulations and rules as any other city, including open meetings and ethics laws. It would be a “self-governing community, organized much like a traditional city or county, but wholly focused on the development of innovative and advanced technologies.” 

Nevada is a Dillon’s rule state, which means that cities and counties govern only to the extent that they are specifically delegated by the state, limiting local control over a number of policy areas.

Some of these have sought to embrace innovation more than others. However, as cities clamor for more and different transportation options, new entrants to the market may seek to work with cities like Memphis and Atlanta that have shown a willingness to consider and welcome innovative transportation options. Cities and states may also seek to specialize by focusing on innovation in certain areas, such as transportation or advanced medical technology, by providing regulatory sandboxes for innovators.

By developing diverse legislative and regulatory options, market-preserving federalism ultimately offers consumers more options. Technology rarely stays within strict borders, but states and consumers benefit from the overall increase in innovation that arises when states seek to promote entrepreneurship within and beyond their borders. Additionally, small-scale tests allow innovators to show a new technology’s success or limit the impact of its failures.

• Municipal Localization of Environmental Protection 

Cities have experimented with governance in ways that have eventually created positive change at the state and national level. In this way, “[c]ities have served and might again serve as vehicles for the achievement of purposes that have been frustrated in modern American life,” and might provide the ability “to participate actively in the basic societal decisions that affect one’s life.” It is the hope of many that they can play the same role in responding to a number of pressing environmental needs. The home rule framework was designed to ensure that cities would have the ability to respond to their rapidly changing needs; by infusing home rule with an updated understanding of government obligations toward the environment, it may be brought a bit closer to achieving that goal.

The past several decades have seen cities, reinvigorated by increased growth and political will, emerging as progressive forces in a number of areas. The urban portfolio often includes measures focused on environmental protection, and environmental advocates and scholars have been vocal in their support for this new wave of local environmentalism. This trend has been countered by a rising division between state and local populations on social issues. In a number of states, however, local legislation addressing issues such as sexual orientation and gender, minimum wage, and environmental protection has provoked state legislators to pass statutes that explicitly remove certain policy options from local authority. These state measures invalidate local laws passed, in most cases, pursuant to the localities’ home rule authority.

At first glance, the framework for distribution of state and local power in the United States presents no barrier to this kind of state action. Localities have historically operated under the umbrella of the state, and are vested with only those powers specifically delegated to them. To loosen the strictures of this approach, throughout the twentieth century most states adopted home rule provisions. These provisions, although highly varied, were in general designed to allow localities to solve urban issues creatively, and avoid state determination of local matters.

The home rule doctrine therefore allocates to localities a certain degree of authority. In all home rule states, however, that power is generally subject to override by the state upon assertion of a state interest, or the passage of general state legislation that conflicts with the local measure. While the ability of the state to counteract local laws is very strong, assertions of state power have at times received pushback from courts. This is particularly the case when certain categories of local legislation, or impacts on constitutional rights, are at issue.