The debate over whether and how state governments should preempt local governments from making policies that could negatively impact housing supply is not a new one. This discussion has roots dating back to the late 1800s when Judge Thomas Cooley challenged the Dillon Rule, which restricts the powers of local government. Cooley’s argument, particularly in his concurrence in the case of People ex rel. LeRoy v. Hurlbut, emphasized the importance of local control as a fundamental principle of American democracy. He drew upon historical references and insights from figures like Alexis De Tocqueville and Frances Lieber to argue that American’s basic rights are tied to local government.
Cooley’s perspective on the relationship between state and local government continues to be relevant today, especially in the context of addressing demand for housing and restrictive local land use and zoning decisions that hinder housing supply. Groups like the National League of Cities are actively opposing efforts by legislatures to limit local government autonomy, advocating for more home rule states where local governments have greater control over their policies. On the other hand, organizations like the American Legislative Exchange Council (ALEC) support the Dillon Rule, arguing that it helps maintain economic continuity and prevents local governments from overreaching into areas outside their expertise.
In some states, the debate over preemption has become particularly intense, especially in relation to issues like rent control. For example, Ohio, a home rule state, has preempted local jurisdictions from enacting rent control measures. The state legislature, dominated by Republicans, passed this measure in response to efforts by activists in various cities to push for rent control. This example illustrates how politics can play a significant role in shaping preemption policies, with different political parties often having contrasting views on the appropriate balance between state and local government control.
The Dillon Rule versus home rule debate is evident in many states across the country, with 31 states following the Dillon Rule, 10 states practicing home rule, and 9 states having a mix of both. The contention between states and local governments over who has the authority to make certain policy decisions underscores the ongoing relevance of Cooley’s arguments about the importance of local control. While states may use preemption to prevent local governments from straying into areas beyond their purview, there is a delicate balance that must be struck to ensure that local governments can effectively address local issues and respond to the needs of their constituents.
As discussions around housing supply and affordability continue to evolve, the question of preemption and the appropriate balance between state and local government authority will remain a central issue. Cooley’s arguments about the fundamental right of local governments to govern themselves, rooted in the principles of American democracy, provide a valuable perspective in guiding these debates. Ultimately, finding a balance that allows for effective governance at both the state and local levels while protecting individual rights and promoting economic stability will be crucial in shaping housing policies and addressing the challenges of housing supply and affordability.
