Let Local Governments Be

Up in Northern Virginia, the past is being confronted by the present (and, I suppose, the future). The Alexandria City Council voted on Saturday to remove a statue of a Confederate soldier from its prominent place in Historic Old Town.

This decision echoes a series of similar moves across the South in recent years. For instance, South Carolina Governor Nikki Haley signed a bill last year to remove the Confederate flag from the capital grounds. Here in Virginia, Governor McAuliffe stopped the issuing of license plates with Confederate flags on them.

In Richmond, there's been a more complicated response. For example, Henrico County earlier this year dropped the name of segregationist Harry Byrd from a local middle school. But there was little discussion in the county of changing the name of Lee-Davis High, while two years ago, students and alumni from Richmond’s Douglas Freeman High School petitioned to bring back a “Rebel Man” mascot that had been previously dropped.

It’s probably an understatement to say that Richmond, like many Southern communities, has a lot of work to do in deciding how to engage with its Confederate past. Still, the government in Alexandria has spoken, at least; they are going to try and remove the statue.

Wait. "Try?" Why only try? Alexandria also voted to alter the name of "Jefferson Davis Highway" within its borders, and that change will be implemented soon. Why are they waiting on the statue? It turns out that one other group of people needs to weigh in: the good folks at the Virginia General Assembly.

Americans may decry the federal government and celebrate local government as being "closest to the people" (a quote often attributed, probably incorrectly, to Thomas Jefferson). So it may be surprising to learn that in most states, local government basically cannot do a darn thing without approval from the state capital. Welcome to the world under "Dillon's Rule."

John Forest Dillon died in 1914, but the Iowa judge had a lasting effect on state and local politics. In a number of writings and court decisions, Dillon argued that local governments only really had the powers expressly granted to them by state legislatures. Throughout his life and after his death, his ideas about local government were largely accepted by his colleagues, and applied by state legislatures and courts throughout the country.

There's a kind of obvious logic to Dillon’s claims. We don’t think about this much, but cities, towns, counties, etc., are all created by state statute. In Virginia, this means that the General Assembly passed laws that created charters for independent cities and counties. So Richmond’s current charter dates back to 1948, although it has been amended many times since then (most recently in 2010 to adjust how the city government handles appointments to city offices).

So cities and counties literally exist, in the legal sense, at the pleasure of the General Assembly. Technically, the GA could dissolve the City of Richmond if they wanted to, simply by passing a law that revokes the city’s charter. This is obviously unlikely. (Unless, of course, the city adds too many more insufferable hipsters....) But it does mean that state governments control the fate of local ones.

Still, Dillon's Rule goes further to suggest that unless a charter specifically grants a power to a local government, that government cannot do whatever it wants. Only "indispensable" powers are included -- like the ability to issue property taxes, say, or maintain local infrastructure. As a result, Alexandria can change the name of a road, but cannot move a statue.

Local governments in Virginia have long complained about Dillon's Rule restrictions. For example, Fairfax County notes on its website that the Rule "can serve as a constraint to innovative governmental responses." And local governments end up pestering the GA every year for a host of changes, not all of them from the realm of the symbolic like the removal of Confederate statues.

The City of Hampton issued a 29-page report last year detailing the local council’s legislative priorities for the 2016 session. The city's interests ranged from protecting the rights of state attorneys to use local Treasurers to collect fines, to gaining authority to regulate traffic on flooded streets, to the ability to limit stores' use of plastic bags. All of these powers rely on General Assembly action.

In fact, thanks to Dillon's Rule, Hampton has to ask the GA for permission to change the laws that force homeowners to cut their grass to also get them to cut back their bushes. (No dice – better luck next year, Hampton.) A few years ago, Chesterfield County even had to ask the GA to pass a law so that a retiring firefighter could keep his helmet. This is ridiculous.

In general, the story of local government over the past few decades is, as we say in political science, "increased capacity." States and, especially, localities are being asked to support economic growth, provide more services, adjudicate more disputes, and just do more in general. As the functions and needs of cities and counties grow in scope, the idea that the state government should constrain and control them grows outdated in equal measure.

A few states have recognized this by adopting a version of what is called "home rule," or basically removing local governments from the restrictions of Dillon's Rule. Home rule states give localities a chance to decide their own destiny. They allow the people of cities, towns, and counties the chance, as one non-profit puts it, to "assert in law their communities’ vision for the future, by enumerating the rights of the municipal citizenry, including their right to a certain quality of life, and codifying legal protections of those rights at the local level."

But state legislators seem to like things the way they are. Ironically, it is just as often conservative Republicans as Democrats – maybe more so, since Republicans control more state legislatures-- who are apt to defend Dilllon's Rule even as they demand "local control" from the federal government. We end up with absurd attempts, like this white paper from the conservative American Legislative Exchange Council, to defend federalism at the national level while rejecting a similar principle at the local level.

So there may not be much appetite in the General Assembly to drop Dillon’s Rule anytime soon. Still, the time has come to consider it. Giving local governments more autonomy would let communities decide controversial issues – like dealing with a Confederate past – while at the same time letting the GA focus on issues that are truly statewide in focus. Let Alexandria – and Richmond – do what it wants for once.