The Constitution of the United States does not mention local governments. Instead, the Tenth Amendment reserves authority-giving powers to the states. It is not surprising, then, that there is a great diversity in state-local relations between, as well as within, states. This means that to speak of local government in the United States is to speak of more than fifty different legal and political situations. The state municipal leagues can provide information about the charters that each state constitution has adopted.
Types of Authority Given
Political power in a state can be divided into three spheres: the local government, the state government and the functions that the two governments share. Within the local sphere, there are four categories in which the state allows discretionary authority:
- Structural — power to choose the form of government, charter and enact charter revisions
- Functional — power to exercise local self-government in a broad or limited manner
- Fiscal — authority to determine revenue sources, set tax rates, borrow funds and other related financial activities
- Personnel — authority to set employment rules, remuneration rates, employment conditions and collective bargaining
Typically, the broadest discretionary powers are applicable to local government structure, and the narrowest are given to finance. Also, local governments endowed with discretionary authority may not always exercise it; for example, the adoption or amendment of a local government’s municipal charter is infrequent.
Narrow Government Authority: Dillon’s Rule
Dillon’s Rule is derived from the two court decisions issued by Judge John F. Dillon of Iowa in 1868. It affirms the previously held, narrow interpretation of a local government’s authority, in which a substate government may engage in an activity only if it is specifically sanctioned by the state government. Dillon’s Rule was challenged by Judge Thomas Cooley of the Michigan Supreme Court in 1871, with the ruling that municipalities possess some inherent rights of local self-government. Cooley’s Rule was followed for a short time by courts in Indiana, Iowa, Kentucky and Texas until the U.S. Supreme Court upheld Dillon’s Rule in 1907 (Hunter v. City of Pittsburgh) and again in 1923. Since then, the following tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states:
- A municipal corporation can exercise only the powers explicitly granted to them
- Those necessarily or fairly implied in or incident to the powers expressly granted
- Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable
State constitutions vary in the level of power they grant to local governments. However, 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.
Broad Government Authority: Home Rule
The ability of local governments to respond effectively to local conditions in the late 1800s was severely limited by Dillon’s Rule; no local action could be undertaken without permission from the state legislature, which only met for short, biennial sessions. As such, Dillon’s Rule generally requires that local officials spend a considerable amount of time lobbying the state legislature to approve bills granting local authority and disapprove bills imposing restrictions on them.
The inflexibility of this system is the reason that many states began to adopt “home rule” provisions in the early 1900s that conferred greater authority to their local governments. Home rule is a delegation of power from the state to its sub-units of governments (including counties, municipalities, towns or townships or villages). That power is limited to specific fields, and subject to constant judicial interpretation, but home rule creates local autonomy and limits the degree of state interference in local affairs.
The powers and limits of home rule authority for local governments are defined state-by-state. State provisions for home rule can be defined by each state’s constitution and/or statutes enacted by its legislature. Not all cities make use of the discretionary powers of home rule that are provided by their charter. Functional powers are the most frequently used and expanded.
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Florida League of Cities, Inc. “Understanding Florida’s Home Rule Powers for Cities and Counties.” Accessed March 22, 2011.http://www.flcities.com/membership/home_rule_history.asp
Krane, Dale, Platon Rigos, & Melvin B. Hill, Jr. Home Rule in America: A Fifty-State Handbook. Washington, D.C.: CQ Press, 2001.
Richardson, Jesse J. Is Home Rule the Answer? Clarifying the Influence of Dillon’s Rule on Growth Management. Washington, D.C.: Brookings Institution, January 2003.
Russell, Hon. John D., Bostrom, Aaron, “Federalism, Dillion Rule and Home Rule,” The American City County Exchange, January 2016.
United States Advisory Commission on Intergovernmental Relations. “Measuring Local Discretionary Authority. M-131.” Washington, DC: U. S. Advisory Commission on Intergovernmental Relations, 1981.
United States Advisory Commission on Intergovernmental Relations. “State Laws Governing Local Government Structure and Administration. M-186.” Washington, DC: U. S. Advisory Commission on Intergovernmental Relations, 1993.
Writ, Clay L. “Dillon’s Rule.” Virginia Town & City. 24(8) (1989): 12-15.