Category: Federalism

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Local Governing Authority: Dillon’s Rule vs. Home Rule

There are two different legal theories concerning the governing authority of local governments: Dillon’s rule and the Cooley Doctrine (more commonly referred to as the home rule doctrine).  States may apply only Dillon’s rule or home rule to local governments, or they may apply a combination of Dillon’s rule and home rule.  Local governments in most states operate exclusively under Dillon’s rule or a combination of Dillon’s rule and home rule.  Texas local government operates under a combination of Dillon’s rule and home rule.

Direct Link: Home Rule

Dillon’s Rule: State Preemption & Narrow Local Authority

“Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control. ”  – John Forrest Dillon in Clinton v. Center Rapids and the Missouri River Railroad, 1868

According to Dillon’s rule, the state government has authority and supremacy over its respective local governments, which are considered extensions of state government.  Local governments, as extensions of state government, must be structured per state requirements and can only provide those services that the state authorizes them to provide.  “Dillon’s Rule states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred” (National League of Cities, 2016).  Because local governments exist at the pleasure of the state, the state can step in and dissolve them, reorganize them, or take them over.  Furthermore, because local governments are essentially extensions of state government, states are held accountable for the actions taken by their respective local governments.

Dillon’s rule resulted from concerns about local corruption and fiscal irresponsibility.  Dillon’s rule is often viewed as consistent with the principles of federalism outlined in the U.S. Constitution, including a limited federal government and relatively strong states.  “The Founders designed the federal government to be dependent on the states, while the states could stand on their own” (Russell & Bostrom, 2016).  Dillon’s rule extends this dependence on the states to the local level.  As such, federal courts have often ruled in support of this doctrine of governing authority of local governments.

Home Rule: Broad Local Authority

“. . . local government is [a] matter of absolute right; and the state cannot take it away.”  –  Thomas M. Cooley in People v. Hurlbut, 1871

Under the home rule doctrine, local governments have local autonomy and an inherent right to self-government.  Home-rule provisions allow local governments flexibility in addressing the needs of their citizens, without requiring specific delegations of power from the state.  Local governments operating under home rule have some discretion to make decisions about their structure, enact local laws, and make decisions relating to taxation without state interference.  The extent of a local government’s discretion is bound by a state’s constitutional or statutory laws and is often spelled out within a local charter.

During the late 1800s and 1900s, states began to pass legislation and/or include constitutional provisions allowing for home rule in local governments in response to the inability of local governments to respond to increasingly complex problems.

Comparing Dillon’s Rule & Home Rule

Dillon’s rule and home rule are contrasting theories; the advantages of home rule can be seen as offsetting the disadvantages of Dillon’s rule, and vice versa.

Dillon’s Rule

  1. Allows for uniform taxation, environmental regulation, and land use, which benefits businesses
  2. Reduces arbitrary risks that can be taken by local governments
  3. Prevents cities from straying too far from legitimate authority as recognized by the U.S. Constitution
  4. Reduces local corruption

Home Rule

  1. Gives government the ability to make decisions based on local needs, rather than using a one-size-fits-all approach
  2. Provides local control and freedom to self-govern, which may empower citizens
  3. Allows local governments to address financial difficulties by developing new revenue streams
  4. Frees up the state legislature to focus on statewide issues
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Judicial Federalism: The Dual Court System

The United States court system is based on judicial federalism, in which judicial authority is shared between levels of government.  The structure of the federal court system is outlined by Article III of the U.S. Constitution and statutory laws passed by Congress.  States are given the authority to establish their own court systems.

State courts hear most day-to-day cases (and approximately 90 percent of all criminal and civil cases).  State courts help the states retain their own sovereignty in judicial matters over their state laws, distinct from the national government.

Federal courts only hear cases that involve a “federal question” *(i.e., involve a federal criminal law, bureaucratic rule, etc., or raise the question whether some law or action violates the U.S. Constitution), interstate matters, and diversity of citizenship matters involving parties of two different states or between a U.S. citizen and a citizen of another nation (with a damage claim of at least $75,000).

State and federal court systems sometimes intersect and overlap each other.  When concurrent jurisdiction exists between the federal and state court systems, there are alternative venues in which someone may appeal for assistance.  Concurrent jurisdiction between federal and state court systems also means that there are different courts in which a person can face charges for a crime or violation.  Double-jeopardy only protects the accused from being tried for the same crime in the same court system; it does not protect the accused from being tried of the same crime in a different court system.

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National Influence Over States

Fiscal Federalism

Fiscal federalism refers to the use of grants-in-aid (federal funds allocated to state and local governments) to encourage policies at the state and local levels.  Grants-in-aid have long been used to influence state actions.  The first federal grants-in-aid in the U.S. were during the Articles of Confederation.  The use of grants-in-aid as a mechanism to influence states and local governments expanded as we shifted towards cooperative federalism during the 20th century.  Today, many contemporary facets of federalism involve questions on money and control.

Different types of grants-in-aid have different levels of conditions on aid, which require states to spend grant money in certain ways if they wish to receive federal funding.

Type of Grant-in-Aid Description Conditions-on-Aid?
Categorical Grants Federal aid to states and localities clearly specifying what the money can be used for Yes; high (less state discretion)
Block Grants Federal grants to states to be used for general conditions Yes; low (more state discretion)
General Revenue Sharing Federal aid to states without any conditions on how the money is to be spent No (full state discretion)

Administrative Federalism

Administrative federalism refers to the process whereby the national government sets policy guidelines and then expects state governments to pay for the programs they engender without the use of grants-in-aid.

One of the main tools the federal government uses when engaging in administrative federalism is the unfunded mandate, which imposes federal requirements on state and local governments without providing any monetary aid to meet those requirements.  The federal government can also withhold federal monies (such as reducing the amount of money given to a state through general revenue sharing) to encourage states to adopt certain policies.

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Horizontal Federalism: Relations Among States

“The U.S. Constitution . . . creates a constitutional interstate web holding the economic union and the political union together by means of the interstate commerce, full faith and credit, privileges and immunities, interstate compact, and rendition clauses” (Horizontal Federalism, 2011, p. 1).  We refer to these obligations that each state owes to another, as outlined in the U.S. Constitution, as horizontal federalism.

Two important constitutional provisions that help to establish horizontal federalism are found within Article IV of the U.S. Constitution:

Full Faith and Credit Clause (Article IV, § 1): “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Privileges and Immunities Clause (Article IV, § 2, clause 1):  “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.”

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Federalism: Nation & States

The framers of the U.S. Constitution sought to create a limited government in which power was fragmented and divided not only between different institutions (separation of powers) but also between different levels of government (federalism).  

Federal: Enumerated & Implied Powers

The federal government was designed to be one of limited and enumerated powers.  Enumerated powers, which are explicitly listed in the U.S. Constitution, include coining money, regulating interstate commerce, conducting foreign affairs, establishing rules of naturalization, raising and supporting armies, and declaring war.  Congress was also granted implied powers through the elastic clause:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Some of the growth in power in the federal government has resulted from broader interpretations of enumerated powers, such as Congress’s power to regulate interstate commerce,  (i.e., commerce clause).  Most of the growth in federal power (and most of what the federal government does today), however, is associated with its implied powers.

States: Reserved Powers

States were designed to be governments of general jurisdiction.  According to the reservation clause, “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  In other words, states are granted reserved powers, which have traditionally included things such as regulating intrastate commerce, conducting elections, and police powers (i.e., providing for the health, safety, education, and welfare of its people).  This design was meant to give the government closest to the people the means through which action can be taken to address the everyday needs of its people.  Today, many of the states’ reserved powers are no longer under their sole authority.

Federal & States: Concurrent Powers

Concurrent powers are powers that can be exercised by both the federal government and state governments.  Some of the more visible concurrent powers that exist include taxation, borrowing money, making and enforcing laws, and eminent domain.

Restrictions on Federal & State Power

Most restrictions on federal and state authority can be found in Article I, Sections 9 and 10, the Bill of Rights, and the Fourteenth Amendment.