A State's Right
Why states, like Michigan, have the power to take over local governments.
Gov. Rick Snyder of Michigan, according to his critics, is not merely misguided. He is un-American. Snyder's plan to take over financially troubled cities and appoint unelected "emergency managers" to run them "is the same kind of flagrantly undemocratic 'emergency rule' used by military dictators,"wrote a blogger on DailyKos. Rachel Maddow warned her viewers that if Snyder has his way, popular sovereignty at the local level will come to an end:
Doesn't matter who you voted for in Michigan. Doesn't matter who you elected. Your elected local government can be dismissed at will. The emergency person sent in by the Rick Snyder administration could recommend that a school district be absorbed into another school district. That emergency person is also granted power specifically to disincorporate or dissolve entire city governments.
These critics may have a political point. But they have no legal argument. There is no constitutional right to local self-government in the United States. In 1907, the Supreme Court decided, in Hunter v. Pittsburgh, thatunder the Constitution local governments are nothing more than "convenient agencies for exercising … such powers as may be entrusted to them" by the state. As a result, "the state may modify or withdraw all such power, may take without compensation such property, hold it for itself, or vest it with other agencies, expand or contract the territorial area, unite the whole or part of it with another municipality, repeal the charter and destroy the corporation … with or without the consent of the citizens, or even against their protest."
Many American cities have been annexed by other cities against the protest of their residents. In fact most of the nation's largest cities have grown through such forcible annexations of neighboring territory and smaller cities. Not only can existing towns and cities be absorbed into larger governments, but states can also decree that an unincorporated community simply be governed by a neighboring city without being formally annexed—and without its residents having a vote in the election of that city's government. Thirty-five states allow local governments to exercise such "extraterritorial jurisdiction" over people and property outside city limits. As a result, citizens can be regulated, fined, and taxed by local governments they did not elect.
Why isn't this a violation of the well-established constitutional principle of one-person, one-vote? Because that right applies only to people who live within city (or town or village) limits. Contrary to what most Americans may believe, people who don't live in a place with its own established local government—like a city, town or village—have no right under the Constitution to govern their own local communities. In fact, their communities can be governed by other local governments in which they have no say.
In other words, how local government is organized is up to state law, and the remedy to amend these state laws is the political process. As William Rehnquist wrote in the 1978 case Holt Civic Club v. Tuscaloosa, which upheld Alabama's decision to give cities extraterritorial jurisdiction over nearby settlements, the "authority to make those judgments resides in the state legislature." Citizens who dislike the existing arrangement, he wrote, "are free to urge their proposals to that body."As far as the Constitution is concerned, a state could dissolve all of its local governments and run everything from the state capital. Whether there is local democracy at all is entirely a matter of state law.
So there's nothing in the Constitution that stops state-level takeovers of cities and school districts. Indeed state governments have taken control of troubled cities in the past. In 1991 Massachusetts placed the Boston suburb of Chelsea into receivership, reducing its elected government to an advisory capacity and vesting power in an appointed receiver. In 2000 New Jersey placed the city of Camden into receivership.
Under Snyder's proposed "Local Government and School District Fiscal Accountability Act," an emergency manager appointed by the governor could renegotiate contracts, terminate collective bargaining agreements, close buildings and schools, and even reorganize or dissolve local governments and school districts—all without the consent of elected officials or local residents.
Yet in 2002—nine years before this proposal was a gleam in Rick Snyder's eye—Michigan declared a fiscal emergency and appointed an emergency manager in the city of Flint, divesting the elected government of control over the city's finances. In fact Michigan has declared seven local financial emergencies since 1990, when the state first acquired the authority to put unelected emergency managers in charge of troubled cities. According to the state's Web site, three Michigan cities are currently run by state-appointed financial managers.
So the new law isn't a radically new or unprecedented affront to local democracy. It's a relatively modest expansion of a power Michigan already has. This doesn't mean that the new law is justified. It just goes to show that there's nothing un-American about a good old-fashioned power grab. And the only remedy the Constitution provides for that is for citizens to voice their disapproval of stateleadership at the ballot box in the next election.
Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.
Photo by Bill Pugliano/Getty Images.