Constitutional Law for NIMBYs: A Review of

Abstract

Model laws play an extremely important role in the history of "home rule "for local governments in the United States. So it is of no small moment that the National League of Cities (NLC) proposed a new Model Constitutional Home Rule Article (the Model Article) last February.

Unfortunately, the Model Article is severely flawed. Rather than systematically addressing and responding to the various contemporary problems of local governance, it is laser-focused on a single issue: the spate of preemptive laws passed by politically-conservative state legislatures in recent years to override policies adopted by politically'- liberal cities. To address these preemptive laws, the NLC suggests the adoption of a suite of provisions that would radically increase and protect the powers of local governments. But while the Model Article suggests very substantial expansions of local authority, it does not balance this with any new limits, even in areas where local governments systematically create huge societal costs. The NLC barely mentions many of the most important problems in contemporary local governance, including zoning and the housing crisis, police brutality, subsidies for firm location, unrepresentative local elections, segregation, and underfunded public employee pension programs. Further, the Model Article does not propose any substantive requirements that would address these issues and would substantially frustrate state legislative efforts aimed at limiting socially-costly local policies in these areas. It does not address questions of incorporation or annexation, granting new powers to our existing set of local governments, despite the problems their boundaries create for regional economic output, segregation, and inequality. The NLC report also implicitly takes a strong ideological position about what types of policies local governments can and should adopt, something that its putatively neutral rhetoric about the value of localism and laboratories of democracy does not support.

For the NLC, with great new powers come absolutely no new responsibility or limits. The Model Article would allow and encourage local governments to exclude outsiders and create regulatory confusion inside metropolitan areas. It would generate a substantial amount of harm to metropolitan economies and inequality in the name of allowing even small home rule local governments to choose their own policies without interference from outsiders. No state should adopt the NLC's recommendation.