Local Government as a Threat?

Earlier this month, Franklin Foer argued in The New Republic that “The Greatest Threat to Our Liberty Is Local Governments Run Amok.” It seems that the main purpose of the article is to use Ferguson as a means to challenge the idea of modern libertarian politicians that some matters of governance are best left to local governments. The problem is that the article overlooks a lot.

I want to very briefly call out one of those things: The article’s conflation of state and local governments. As I recently explained in an essay for The Urban Lawyer, states and municipalities maintain drastically different roles in our system of government. Not that these two levels of government can’t work to solve the same problems: ours is a system of polyphony. But it is a mistake to equate the legal authority of the state with that of the city.

New Edition of The Urban Lawyer

The Spring Edition of The Urban Lawyer is up on the ABA’s page for the Section of State and Local Government. My article, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, is part this edition. It is also available on SSRN.

Here’s a list of the other articles in this edition, with links to SSRN versions:

Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties

I have a new paper out this week in The Urban Lawyer.  It is an essay that touches on many of the things discussed on this blog over the past few years. It can be downloaded on SSRN. Here’s the abstract:

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.

Review: “The Metropolitan Revolution”

the metropolitan revolution cover imageThere is an inherent difficulty in writing about the increasing strength of cities: The movement is decentralized, with thousands of varied initiatives across different states and even countries. Not every city needs grass-removal rebates; not every city needs an aggressive vacant-property-registration program. This variation leads to two opposing pitfalls in discourse about cities: getting bogged down in details about individual programs, or speaking so broadly that it amounts to nothing but vague pro-urban cheerleading. Thankfully, in their new book “The Metropolitan Revolution: How Cities and Metros Are Fixing Our Broken Politics and Fragile Economy,” Bruce Katz and Jennifer Bradley (from the Brookings Institution’s Metropolitan Policy Program) consistently strike the right balance.

The book’s strength comes in identifying emerging trends in city governance, and backing them up with solid examples. The last half of the books does this explicitly, discussing three ideas: (1) the creation of “innovation districts” formed by clustering companies to spur economic growth (chapter 6); (2) the growing importance of U.S. cities engaging with cities in other countries, as Portland has done by selling eco-friendly products, and Miami has done by attracting business from South America (chapter 7); and (3) the need for support and freedom, rather than resistance and constriction, from federal and state government (chapter 8, calling for a rethinking of federalism, as Katz does in this video).

The book is littered with other useful tidbits about the “metropolitan revolution.”  One general theme for the book is the advantage metro-leaders have in seeking pragmatic solutions to ground-level problems, and the increasing ability for successful solutions to spread because of advances in communication technology. Katz and Bradley also highlight some specific solutions. In chapter 5, which discusses Houston, they underscore the value of community centers in assimilating immigrants. Other chapters describe the importance of regional cooperation. Chapter 3, for example, discusses how metropolitan Denver came together to support the arts, plan more-efficient public transportation, and compete for business as a region rather than as individual suburbs. And chapter 4 covers efforts in Northeast Ohio to build a coalition of businesses to kickstart the region’s economy.

Another example I found particularly interesting is the book’s emphasis on the need to create science and technology jobs. The authors note the conclusion of economist Enrico Moretti that “each new high-tech job in a metropolitan area leads to, over the long term, two additional professional and three additional nonprofessional jobs.” They then showcase efforts in New York City to build tech colleges to attract talent to the area (chapter 1), and attempts to build hubs for tech companies in Cleveland and Detroit (chapters 3 and 6).

The book is refreshingly up-to-date, at least in regard to Detroit, the city it covers that I follow the most closely. The book was published this summer, yet the authors managed to squeeze in the March 2013 appointment of Kevyn Orr as an emergency manager, and the January 2013 federal grant to support a new rail line connecting the suburbs to downtown.

I caution that Katz and Bradley don’t always avoid the pitfalls in writing about cities that I mentioned earlier. They occasionally slip into careless politicking, filling up paragraphs with buzzword-laden stump speeches for urban living (as with the example I’ve noted before about the “new growth model and economic vision” that will “build an economy that works for working family,” p. 2-3). Other times, they get lost in the details of documenting stories, albeit compelling ones, about the communities they write about, at the risk of readers glossing over the trends the authors seek to identify.

Nevertheless, for a frontline analysis of the growing strength of cities in the United States, this is the book to check out.

Do state constitutions affect school curriculum?

classroomStudent Carissa Harris has written an interesting article in support of her masters in political science at Virginia Tech. I found out about it because it discusses my piece on federalism and education. The most interesting part, to me, is her research into the possible correlation between state constitutions and civics curriculum.

First, Harris examined each of the 50 state constitutions. She breaks them down into three categories: (1) constitutions that provide for free schools but do not mention the importance of schools for democracy (this is the majority of states), (2) constitutions that “begin their education articles with an explicit statement that education is essential to the maintenance of democracy” (there are 14 of them) and (3) Iowa, which has no education provision in its constitution. Second, Harris examined “each state’s high school graduation requirements, both for social studies in general and for civics/government courses in particular.”

Harris was looking for a connection between strong constitutional provisions about education and strong graduation requirements in civic education, but she didn’t find much. “Only eight of the 14 states with such constitutional emphases include civics or government courses as part of their social studies requirements for high school graduation,” she wrote, leading to the conclusion that there is “[n]o clear connections between state constitutions and social studies requirements emerged from these 50-state comparisons.”

Harris then picked two neighboring states to compare: Minnesota, with a strong constitutional provision about education, and Wisconsin, without one. Here, she found some variation, concluding that “[e]ach state’s different approach to curriculum requirements indicates that the state with a more explicit education mandate in its constitution (Minnesota) has more specific and rigorous civics education graduation requirements. But that does not preclude an individual school district in Wisconsin from implementing the same or more rigorous civics requirements.”

I’m not surprised that there is a weak correlation here. My suspicion is that state politics vary just as much if not more than federal politics, and a particular constitutional provision—especially one so weak as an explanation for why the state needs to provides schools—reflects the political emphasis at a particular point in time. Curriculum, I would think, is changed more often, and likely at a different time, and by different political players, resulting in a weak connection between the constitutional authority for, and the nuts and bolts of, a state’s education policy.

Harris’s ultimate conclusion is stated stronger than her evidence supports: “That many states do not provide thorough civics education requirements (possibly because of lack of resources or because more focus is placed on curriculum areas subject to high stakes standardized tests) suggests that inconsistency in, and an overall lack of discussion about, education standards will continue. Without an explicit Constitutional motivation to set such standards, it appears the status quo will remain into the foreseeable future.” I’m not persuaded. I think that states can and will take more control on education if there is political willpower, regardless of “constitutional motivation.” In fact, no “constitutional motivation” will likely ever exist unless there is a strong education-reform political constituency.

On another note, Harris addresses my proposal that the Department of Education could have a strong role as a meeting place for state and federal education policymakers. She acknowledges that Congress is in fact heading this direction, but argues that “this would lead once again to more national control over education policy, which would contravene the trend of new judicial federalism.” I disagree that my proposal means more federal control over education policy. Right now we have lots of federal control, with standards many criticize as too one-size-fits-all. Giving states more ways to express their concerns to the Department of Education—whether through waiver applications, special notice and comment procedures, or stronger provisions for state-initiated judicial review—and giving the agency leeway to address these concerns, would tip the balance in the other direction.

Increased federal oversight of Metra

0802130709This week brought news that the Federal Railroad Administration is going to increase its oversight of Metra. This change is in response to a request earlier this month by Senator Dick Durbin. Durbin explained that increased oversight is needed because “the lack of permanent leadership at the (Metra) board and management levels creates a situation where accountability is hard to find and priorities like safety could become neglected.”

The leadership problems Durbin is talking about are no joke. Metra’s CEO Alex Clifford was recently ousted; he says in retaliation for resisting improper political pressure by Illinois politicians. And Clifford was brought in after former Metra executive director, Phil Pagano, defrauded the agency of $475,000. To make matters worse, Clifford walked away with a $718,000 severance package (though he might lose that because it contained a nondisclosure agreement related to the political scandal), and four Metra board members, including the chairman, were so upset with the severance deal that they resigned.

Thus, although on the surface, the federal government in stepping in to review safety procedures, it doesn’t take much digging to figure out the real reason: The feds don’t want to keep funneling federal money into Metra when it has this messy leadership problem. As noted in the Chicago Tribune, the “U.S. Department of Transportation is expected to invest $135 million in Metra’s infrastructure this year alone.”

Maybe federal oversight can help Metra transition to the new Ventra program too.

Applying theories of federalism to education reform

file5011249338919As a follow up to my earlier post with a concise history of the federal role in education, I’d like to share another portion of my paper about applying theories of federalism to education reform. The full text can be downloaded at SSRN. Here’s my thoughts on modern theories of federalism as applied to No Child Left Behind (NCLB), with footnotes omitted, as appears on pages 91 to 94 of An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79 (2012):

Under a conventional viewpoint of federalism, NCLB is a federal encroachment into a traditionally state realm.  But the federal role in education shows no signs of decreasing, so new theories are needed to explain and analyze this unique federal and state collaboration.

NCLB could just be a sign that federalism is obsolete in America. This contention has been made by Professors Malcolm Feeley and Edward Rubin, who suggest that federalism is merely a tool for political compromise. According to them, America now has a strong national identity and the states do not hold strong distinct values, so federalism is no longer necessary. Although they recognize federalism won’t disappear any time soon, Feeley and Rubin suggest that education is an area where national standards may be particularly appropriate, as highlighted by the recent initiative of the National Governors Association to establish uniform national education standards. Feeley and Rubin point out that people promoting “state rights” often use federalism arguments to obscure their true objectives–whether they are preserving parental control, promoting school experimentation, or avoiding federal bureaucracy–when it would be better to debate these underlying policies directly.

Instead of arguing federalism is obsolete, Professor Erwin Chemerinsky argues for an augmented theory of federalism as empowerment.  He contends that the genius of federalism is giving multiple actors power to address society’s ills. He suggests that federal and state governments should vigorously and simultaneously try to reform education, with little restraint from courts.  He also argues that, to empower states, the preemption doctrine should be applied only in circumstances where the federal government expressly preempts state law. Although this theory appears to be broader than the Supreme Court’s current stance on federal power, it is less radical than the theory that federalism is obsolete altogether.

Similar to Chemerinsky, Professor Robert Schapiro argues for a “polyphonic” approach to federalism. Since the federal and state governments cannot take away each other’s authority to create law, these governments “represent independent voices of authority.” Schapiro describes this interaction as “polyphony”–when both federal and state governments can voice their independent ideas and concerns on education law and policy.  He criticizes Chemerinsky’s theory for having “nothing to say about the No Child Left Behind Act, other than that courts should keep their hands off it.” In contrast, polyphonic federalism, he argues, provides “at least a framework” for analyzing NCLB. As a “joint state-federal effort to improve education,” he says, NCLB fosters more accountability of education policy set solely by states. Schapiro acknowledges, however, that his “analysis rests to some extent on an optimistic account of NCLB,” and he never recommends how NCLB should change when reauthorized. The changes he does propose–limiting preemption doctrine and using our dual court system to protect fundamental rights–would have little effect on NCLB because of the liberal judicial approach to the Spending Clause and the lack of a federal right to education.

Finally, NCLB could be viewed through the lens of Professor Gillian Metzger’s work. She argues that, because the administrative state necessarily intersects with federalism concerns, administrative law is useful to states and courts in addressing these concerns. For example, states have used traditional agency procedures to challenge the rationality of agency decisionmaking. And the Supreme Court has used administrative law to address federalism by applying unique standing rules and heightened substantive scrutiny when analyzing agency action challenged by states.  Metzger argues that agencies are particularly responsive to states because regional offices give agencies a closer connection to states and state implementation ensures that agencies account for their interests. Additionally, agencies safeguard state interests because their rulemaking guidelines require review of state input in a way that ad hoc litigation does not; agencies are subject to judicial review; and agencies can review state concerns on an ongoing basis.  As discussed in the next section, Metzger’s proposal holds promise in increasing the “polyphony” of NCLB because administrative law might provide the perfect stage for state and federal government to raise their voices on education policy.

Is federalism a useful concept for state and city interactions?

9780226736624As a follow up to yesterday’s book review, I’d like to discuss whether a certain theory of federalism—that is, the interaction of state and federal government—applies with equal force to city and state interactions. That theory is “polyphonic federalism.”

Let me explain. “Polyphony”—a musical term describing independent voices singing together—was applied to federalism by Emory Professor Robert Schapiro in his 2009 book Polyphonic Federalism. Schapiro argues that federalism’s beauty lies in it enabling independent levels of governments to conflict or coordinate in route to achieving national goals. This interaction benefits America, he argues, by allowing the two levels of government to vigorously raise their voices and hash out important policies in a way that reflects both national and state concerns.

Is this theory useful to our understanding the relationship between city and state?

No, say some. In City Bound, Gerald Frug and David Barron criticize the concept of federalism as applied to cities and local autonomy. They argue that federalism (and its European Union cousin “subsidiarity”) provide “no clean way to divide matters into discrete ‘local’ and ‘central’ spheres” and thus “have been used to justify denying powers to localities.”

Yet while I agree that federalism is sometimes used this way, I also believe the concept is useful to empowering beneficial state and city interactions. Of course, state and city interactions can never be exactly the same as those between federal and state government because cities derive their power from the state, so interactions will always be weighted in favor of the state. But since most states have enacted some from of home-rule legislation—giving broad authority to cities over local concerns—the two systems (federal to state, and state to city) do model each other to some extent.

And to the extent they do model each other, I believe polyphony is a useful concept. States and cities, working together, can accomplish far more than either could accomplish alone. Cities have citizen engagement and can act as important laboratories of innovation. States, in turn, have the ability to regulate regional concerns—such as transportation, environmental concerns, and housing, among many other things—just as the federal government can step in an control matters of national concern. But can a city really push back at the state government? I think so, especially in states where a major city has a relatively large number of political delegates in the state government (as with Chicago) or where the state government is centered in the state’s major city (as with Atlanta). As Frug and Barron point out, Denver (and probably other cities) actually has the power to pass ordinances that override state law.

Is polyphony a useful concept to state and city interactions? Please send me your thoughts.