So-called “Dillon’s Rule” states, including Virginia, operate under the assumption that localities can only wield powers explicitly authorized to them by the state.
That approach has hamstrung cities that wish to solve some of the most pressing problems of their residents. States have voided municipal minimum wage laws, prevented local plastic bag bans, barred the municipal regulation of ride-sharing services and outlawed local family leave policies, to name a few examples.
But if history is any indicator, and one University of Virginia School of Law professor gets his wish, frustrated cities might soon flip the state power dynamic in their favor.
Professor Richard Schragger, one of the nation’s leading experts on the power of city governments, has been working with the National League of Cities to advance model legislative language that, if adopted, could empower cities under “home rule” reform.
He, along with other legal scholars, contributed to the league’s latest report, “Principles of Home Rule for the 21st Century,” released in February. The two-year effort was “a convening of law professors from around the country who are working to study the increasingly contentious relationship between states and their local governments,” Schragger said.
He is also a member of a working group, the Local Solutions Support Center, that is leading efforts to advance local government across the country.
Schragger said there is a need for change because “the contracting of local authority increases the gap between citizen preferences and government responsiveness, and contributes to political apathy.”
He argues that empowering local governments matters even in a time of pandemic. "Cities are on the frontlines of COVID-19. They are instituting public health measures, often before the states or national government. They need increased power to do so."
The last time the league, then called the American Municipal Association, published a model constitutional provision, in 1953, it was widely influential — “with all states amending their constitution’s local government articles or adopting new constitutions,” according to the NLC.
The professor is an advocate for home rule after years of studying how cities and states interact. He is the author of the book “City Power: Urban Governance in a Global Age,” which argues that cities have the capacity to solve many pressing policy problems but are often stymied by state and federal law.
He has also recently authored related articles, such as “The Attack on American Cities,” published in the Texas Law Review, and “Federalism, Metropolitanism, and the Problem of States,” published in the Virginia Law Review.
Schragger, who is the Perre Bowen Professor of Law and a senior fellow at the Miller Center, said frustrated cities are pushing for more authority. Under Dillon’s Rule, cities have limited power to raise revenue, adopt anti-discrimination ordinances, regulate land use and the like.
The fights centering around city power have often been dramatic. Whether its protests and legal disputes over the fate of Confederate monuments, or struggles related to immigration or gun rights, local control over more matters could alleviate some of the tensions, Schragger suggests.
“The distance between the governed and the government matters,” he said. “Local governments need space to experiment even when the issues are highly contentious — and perhaps especially so.”
States have sometimes been heavy-handed in attempting to maintain their control over such matters.
“State legislatures are punishing local governments for deviating even the slightest from state requirements, threatening to withhold state funds for noncompliant cities, and threatening to remove local officials,” Schragger said. “Whatever one thinks of particular local policies, this undermining of local elected officials represents a significant attack on local self-rule.”
Virginia in particular has a “highly centralized” constitution, he said. Lawmakers proposed a home-rule provision in the 1970s, but it didn’t pass.
“In part, this might be because, historically, Virginia did not have a major city that could push back against state power,” Schragger said. “But that is changing. As Northern and other parts of Virginia become increasingly urbanized, the desire for more local control also increases.”
To adopt home rule in Virginia, the commonwealth would have to amend its Constitution, or the legislature could abrogate Dillon’s Rule through statute. Alternately, the legislature could grant more and more powers to cities, along the lines of the league’s recommendations. But without a constitutional guarantee, those rights could be reversed.
Legal reform often occurs in periods of flux, Schragger noted, which gives him hope that there might be a movement toward increased local power.
“At the beginning of the 20th century, home rule was a response to the rapidly changing economics and demographics of an industrializing country,” he said. “A rejuvenated home-rule movement in the states could be the answer to the equally dramatic economic shifts that characterize the beginning of the 21st.”
“Behind the Scholarship” is an occasional series that details the backstories of the faculty’s work.
- City Power: Urban Governance in a Global Age (Oxford University Press, 2016).
- “Federalism, Metropolitanism, and the Problem of States,” 105 Va. L. Rev. (2019).
- “The Attack on American Cities,” 96 Tex. L. Rev. 1163 (2018).
- “The Political Economy of City Power,” 44 Fordham Urb. L.J. 91 (2017).
- “Is a Progressive City Possible? Reviving Urban Liberalism for the Twenty-First Century,” 7 Harv. Law and Policy Rev. 231 (2013).
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