Local Decisions Are Best Made Locally – The Case for Moving Beyond Dillon’s Rule

by Sean R. Stegall | May 13, 2020

We have all been given a front-row seat to watch the states do battle with the federal government, as governors challenge the President – and visa-versa – when it comes to who knows best and who possesses the highest legal authority in responding to the COVID-19 pandemic.

There have been plenty of missteps to go around, and I’ll leave it to the talking heads on TV and the local editorial pages to assign blame and anoint the winners and losers of each skirmish.  That really doesn’t interest me because it’s not particularly helpful to our country or our democracy.

For those of you, however, who are interested in a better city, county, state, and or nation, I suggest to you that there is another governmental tug-of-war occurring with increasing intensity, and the winners of these matches are the ones who decide the answer to this important question:

When it comes to addressing the issues you face day in and day out in your hometown, who knows better and who should be the higher legal authority – your local city council or county commission, or is it your state representatives who govern as your legislator in your state’s capital?

NYU Professor Neil Kleiman recently released research on this topic, entitled “Remaking Federalism – How States can Realign and Build a Healthier and Stronger Union.” Kleiman argues that the pandemic could provide an opportunity to reexamine and refashion the relationship between states and localities and the balance of power between them.

Unlike the relationship of federalism that exists between the U.S. government and the states in which power is shared, municipal governments have no power except what is granted to them by their states. This legal doctrine, called Dillon’s Rule, was established by Judge John Forrest Dillon in 1872 and upheld by the U.S. Supreme Court in Hunter v. Pittsburgh207 U.S. 161 (1907), which upheld the power of Pennsylvania (Wikipedia).

In effect, Dillon says that state governments can place whatever restrictions they choose on their municipalities as long as such rules don’t violate the state’s constitution. The same goes with granting permissions, too. Think of it as a “Mother May I” situation where cities and counties have to always look to the state legislature before taking the next step.

The good news, in my opinion, is that, Dillon’s Rule does not apply in all states in our nation because some state constitutions provide specific rights for municipalities and counties.  These states are called Home-Rule States.

The bad news, unfortunately, is that my state, North Carolina, is a Dillion’s Rule state.  This means that Cary is the same as Rocky Mount which is the same as Asheville which is the same as Charlotte when it comes to how the laws that govern how we serve our citizens are the same, and, by extension, implies that all of the citizens in each of these places must be the same – same education, same life experience, same heritage, same hurdles, same interests, same needs.

Now, I’ve been in North Carolina a relatively short amount of time – but long enough to know that ain’t true.

Let’s let the people decide, and the people I mean not those in Raleigh – but those in each individual locality so they may best fashion laws and regulations that best reflect their unique community values.  Let them also be on their own, to be self-reliant and not turn to the state in times of need.

Can’t have it both ways.

As always, appreciate any comments or counterpoints of view.  Enjoy the report!

 

Sean R. Stegall

 

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© 2020 Sean R. Stegall. All rights reserved.