Will Courts Continue to Favor State Control Over Home Rule? 

Home rule, or direct state constitutional delegation of authority to local governments, has waxed and waned over the past 150 years as a focus of constitutional contestation. Over the past decade, states have been engaging in new forms of extreme, partisan, and punitive preemption of local authority.

Recent abuse of state preemption — the legal doctrine that allows the state to restrict or prevent municipalities from enacting local regulations — has ranged across an array of policy domains, including public health, labor and employment, civil rights, gun safety, environmental protection, and tenant protections, among others, as well as the core internal functions of local governance. These state laws, which severely constrain local authority and undermine local democracy, have brought home rule reform back to national salience. Indeed, the National League of Cities, a major organization representing local government officials, promulgated a model constitutional home rule article in 2020 as a spur to law reform, with local officials and advocates now starting to organize for change.

However, since the earliest days of home rule — with St. Louis being the first home rule city in 1876 — hard-won constitutional reforms have repeatedly met resistance by state courts reflexively oriented to state power. State supreme courts have long interpreted home rule provisions narrowly or even ignored them altogether, leading to repeated cycles of constitutional amendment as advocates have sought to overcome judicial limitations on local authority.

The puzzling persistence of New York’s “substantial state interest” doctrine is an apt case in point. The New York State Constitution first began to recognize a form of home rule in 1894, but a home rule amendment adopted in 1924 was a watershed moment. Advocates sought to empower local governments in the state with direct authority over important areas of local policy, including a catch-all grant to act with respect to the “government and regulation of the conduct of its inhabitants and the protection of their property, safety and health.” At the same time, the state constitution strengthened procedural hurdles that limited state “special legislation” or local laws — statutes that singled out individual cities.

In 1929’s Adler v. Deegan, an early test of this new constitutional combination of local empowerment and state limitation, the state’s highest court validated the state’s sweeping regulation of tenements in New York City (and only New York City) through a statute called the Multiple Dwelling Law. In a well-known concurrence that eventually set the terms of interpretation in New York, Judge Benjamin Cardozo framed the analysis of this special legislation as a question whether the state “has the power to enact local laws by the usual forms of legislation where subjects of state concern are directly and substantially involved, though intermingled with these, and perhaps identical with them, are concerns proper to the [local government]?” His answer was that “if the subject be in a substantial degree a matter of state concern, the Legislature may act, though intermingled with it are concerns of the locality.” In other words, Cardozo could not imagine that the state constitution meant what it said and crafted a doctrine to empower the state notwithstanding. That doctrine settled in.

In the early 1960s, advocates in New York tried again to limit state interference with local governments, leading to the adoption of a new article in the constitution that ambitiously began with what the drafters called a “Bill of Rights for Local Governments.” Among the provisions of this new home rule article was another attempt to raise procedural hurdles to the state adopting laws that target individual cities (with New York City being the frequent object). As one of the drafters of this provision noted at the time, reform was “an attempt to escape from some of the judicial implications which have attended the phrase ‘matters of state concern.’” Not so much, the New York courts then concluded — continuing to apply Cardozo’s increasingly unmoored “substantial state interest” test to validate special laws, despite the reform.

New York is hardly alone in its history of state supreme court rulings that seem in tension with the text, history, and intent of home rule constitutional provisions meant to devolve and decentralize power. Similar examples can be found in California, Florida, and other states — a daunting prospect as structural reform reenters the discourse on the state-local legal relationship.

What can be done, then, should any of the advocacy efforts currently underway lead to real, structural change? Clear text in any new home rule constitutional provisions would be a critical start, and many such provisions historically have been quite detailed. But it would also be important to note to state supreme courts — in the litigation that would likely result from any constitutional change — just how anomalous it would be to ignore text and history in this context. That might be a thin interpretive reed on which to hold out hope for overcoming a long tradition of judicial skepticism about localism, but bringing the interpretation of home rule provisions more into line with general constitutional jurisprudence would be a welcome reform of its own.

Nestor M. Davidson is the Albert A. Walsh Professor of Real Estate, Land Use, and Property Law, Fordham Law School. This piece is based on his recent article “Home Rulings,” published in the Wisconsin Law Review.