Academic journal article Fordham Urban Law Journal

Preemption and Fiscal Authority

Academic journal article Fordham Urban Law Journal

Preemption and Fiscal Authority

Article excerpt

INTRODUCTION                                                        1269   I. Local Autonomy and Local Dependence                            1274      A. Local Fiscal Constraints                                    1274      B. States Can Limit Local Regulatory Authority Too             1277      C. Hyper Preemption's Success Depends on Limited Local Fiscal  1280         Authority  II. Fiscal Constraints and the Progressive City                    1282      A. Limited Autonomy Influences the Local Regulatory Agenda     1283      B. The Half-Empty Glass: Increasing Restrictions on Fiscal     1287         Capital III. Where Do We Go From Here?                                      1290 CONCLUSION                                                          1293 


The Trump presidency has provided urban politicians a chance at national prominence, as urban leaders across the country assert their ability to implement progressive policies at the local level. For example, after President Trump's decision to withdraw from the Paris Climate Accords, mayors of major U.S. cities vowed to meet the Paris goals on their own, (1) and the Climate Mayors, a group of municipal leaders pledging to take action on climate change, has swelled to 407 mayors, representing cities both large and small. (2) Similarly, urban leaders have opposed President Trump's efforts to deport undocumented immigrants. Boston mayor Martin Walsh declared that, "[i]f necessary, we will use City Hall itself to shelter and protect anyone who's targeted unjustly," and told reporters that those who fear deportation "can use my office, they can use any office in this building." (3) Several jurisdictions, including San Francisco and Santa Clara, filed a lawsuit challenging President Trump's Executive Order cutting federal funding for "sanctuary cities"--municipalities that attempt to limit federal immigration enforcement in their jurisdictions. (4)

Urban politicians have also sought to fill the void in progressive leadership at the state level. For example, mayors and local governments have tried to push state legislatures to allow more local regulation of guns. (5) They have also advocated for, and implemented, policies on a range of issues of national concern, including efforts to curb obesity and related health issues, (6) protect the environment, (7) promote participatory democracy, (8) improve working conditions for low-income workers, (9) and safeguard civil rights protections. (10)

Reimagined localism reflects excitement about cities as laboratories for policy experimentation. These efforts paint the picture of increasingly active and powerful local governments and local officials. The picture, however, is more complicated than these anecdotes suggest.

As academic and political advocates of local power observe, efforts to implement progressive policies at the local level have drawn the ire of state legislatures and governors. (11) State legislators are both proposing and passing more laws preempting local authority. (12) Traditionally, state preemption laws simply took away local regulatory authority, but these new "hyper preemption" efforts go beyond that. (13) These new preemption laws increasingly seek to punish local governments and local officials for passing and enforcing regulations that exceed local authority and thereby directly threaten local regulatory innovation. (14) Traditional and hyper preemption statutes, however, are not the only constraints on local autonomy.

Fiscal constraints also significantly limit local autonomy. (15) State law restricts local governments' abilities both to tax and to borrow. (16) Local governments may also face practical limits on their ability to raise taxes without inviting an exodus of local businesses or residents. For example, even jurisdictions with authority to set their own sales tax rates face tax competition from neighboring jurisdictions, which limits the amount of revenue that could be collected by raising sales tax rates. …

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