A core responsibility of a state attorney attorney general is to defend the legality of state statutes as well as the decisions of state office holders and administrative agencies. But the state attorney general is not the only governmental enforcement officer and the resposibility to defend some state statutes and policies can become problematic because of decisions made by local officials who are also interpreting state statutes. This Chapter examines the relationship between state attorneys general with different levels of state government.
The first readings examine the increasing polarization of the country, in which there are not only “blue states” and “red states,” but within those states, there are “blue cities” and “red counties.” The Chapter focuses on the implications of these conflicts on guns and opioids. but the principle is widespread and has become particularly evident in the area of Covid regulations.
Localism - The relationship between state attorneys general and state political subdivisions is defined by each states constitution and statutes.
- “Dillon’s Rule” and the presumption of state dominance over cities and towns:
[A] municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient but indispensible; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation-against the existence of the powers.” Merriam v. Moody's Executors, (Dillon, Ch J) 25 Iowa 163, 170 (1868).
“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.” City of Clinton v. Cedar Rapids and the Missouri River Rail Road Company. (Dillon Ch J) Supreme Court. Of Iowa, 7 Jan.1884
“Dillon’s Rule operates as a standard of delegation, a canon of construction and a rule of limited power. It reflects the view of local governments as agents of the state by requiring that all local powers be traced back to a specific delegation: whenever it is uncertain whether a locality possesses a particular power, a court should assume that the locality lacks the power. By denying localities broad authority, Dillon’s Rule limits the number of entities that may regulate private activity. Only through a clear and express state delegation may a locality obtain power to govern.” Richard Briffault, “On Localism, Columbia Law Review, 1990. Page 8
“The Dillon Rule Guards Against Runaway Local Governments” The Dillon Rule grants state government the power to rein in irresponsible or uncooperative local governments. In fact, John Dillon created the rule in a time when local government corruption ran rampant. Industrial titans and political machines like Tammany Hall interfered with local government, furthering its corruption and waste. Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad companies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state.
Lord Bryce of England observed in 1888: “There is no denying that the government of cities is one conspicuous failure of the United States.” Dillon realized that those in local politics easily succumb to using their power for private gain, or for the gain of their city at the expense of those around it. To halt such abuses of power, it was necessary to grant the states authority to prevent local governments from becoming too powerful or corrupt.
The Dillon Rule also guarantees a certain level of uniformity throughout the state. If the state is a body, the local governments are the limbs. Detached from the body, the limbs are useless. In the same way, local governments must remain attached to the state in order to be effective in good governance. Rather than having vastly different policies and codes in each local jurisdiction, the state can create uniform tax codes and licensing policies, making it a business-friendly environment. Without commonality between local governments on these issues, businesses find more red tape than opportunity, making it difficult for the state and businesses to prosper.
Lastly, consistency throughout the state prevents local jurisdictions from taking ill-advised risks. In this way, local governments cannot implement policies that lead to the detriment of neighboring local jurisdictions. Consistent uniformity, protected by the Dillon Rule, is a prerequisite for statewide stability and prosperity.” Federalism, Dillon Rule and Home Rule By Honorable, Jon D. Russell & Aaron Bostrom. ALEC White Paper, January, 2016
2. Home Rule and General Welfare Clauses in State Constitutions and their impact on local governance
“… It is not appropriate for this Court to enfeeble local governments on the unjustified assumption that strict construction of delegated powers is necessary to prevent abuse. The enactment of a broad general welfare clause conferring police powers directly on the counties was to enable them to act in every reasonable, necessary and appropriate way to further the general welfare of its citizens.
The ultimate limitation upon potential abuses by local governments is the people themselves… In short, we simply do not accept the proposition that local governments are not to be trusted with the full scope of legislatively granted powers to meet the needs of their local constituents. On the contrary, the history of our political institutions is founded in large measure on the concept at least in theory if not practice that the more local the unit of government is that can deal with a political problem, the more effective and efficient the exercise of power is likely to be.
The wide diversity of problems encountered by county and municipal governments are not all, and cannot be realistically be, effectively dealt with by a state legislature which sits for sixty days every two years to deal with matters of general importance.” State of Utah v. Hutchinson, Supreme Court of Utah, 624 P2nd 1116 (1980) (Stewart, Justice)
“The constitutional amendments and statutory provisions authorizing home rule vary enormously from state to state, and may provide different categories or sizes of local governments within a single state. So, too, judicial construction of home rule has been neither uniform or consistent, but has instead been marked by variations from state to state, and often within a state.” State and Government Law, 8th Ed, Richard Briffault and Laurie Reynolds, American Casebook Series, 2016, Page 346.
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