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During an interview on March 24, reporters asked San Francisco Mayor London Breed about President Donald Trump’s hope to see “packed churches” on Easter Sunday, April 12. Breed’s response: “Why are we still listening to the president?” she asked. She went on to explain that the federal government had downplayed the threat of the virus while cities were busy preparing for it: “We had to jump into action and make this work without federal support.” Local governments have been on the front line of the nation’s defense against the spread of the virus, making hard but necessary decisions and setting the example that their own states and federal leaders followed only much later—if at all.
Obviously, such a decentralized response to a pandemic is not ideal, even with the heroic efforts of many local governments and despite what some politicians might suggest. It gives us a patchwork of inconsistent policies, full of holes in those places where officials are unable or unwilling to do what’s needed. But a decentralized response is what we have, and tragically, many state and federal politicians are actually undermining localities that are trying to contain the virus. Trump, true to form, is using the federal response to foster patronage and demand fealty, replacing the trusted watchdog for the federal stimulus with a crony and threatening to snub officials who don’t suck up to him—“if they don’t treat you right, I don’t call,” he said. And some states are blocking the containment efforts of their own cities. For example, Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis issued executive orders exempting religious services from local shelter-in-place directives. Abbott also banned local governments in Texas from releasing inmates on no-cost bonds despite the risks of coronavirus transmission in overcrowded jails. And Mississippi Gov. Tate Reeves effectively quashed local efforts to enforce social distancing, designating most businesses “essential.”
These conflicts may look like familiar ideological clashes: red states reining in the progressive policies of their blue cities. But they are actually exemplary of a different and more troubling phenomenon: state governments captured by ideological factions and self-serving special interests hindering the cities that are our first—and all too often only—line of defense against dire threats to health and safety. This is an inversion of the relationship the Framers expected between centralized and decentralized government. In Federalist 10, James Madison wrote that centralized government—the “extended sphere”—would be a remedy to the “mischief of faction”; he predicted that centralized government would encompass a greater number of factions than smaller governments, and these multiple factions would effectively cancel each other out so that no faction could capture government and distort policy. This hypothesis has been conventional wisdom ever since. And, of course, it’s true that local governments are often captured by factions, just as Madison feared, but unfortunately centralized government is hardly immune. Conversely, because local governments are faced directly with a host of practical problems—law enforcement, public safety, and public health—local policy is often more pragmatic, less subject to capture by special interests and less ideologically driven than policy at higher levels of government. For example, federal immigration policy is currently driven by optics and ethno-nationalist dogma with little attention to practicalities—a problem that began with the Bush administration, continued under Obama, and has dramatically worsened under Trump. A handful of liberal cities made a big show of becoming “sanctuaries” to signal their ideological opposition to the crackdown, but many of the hundreds of local governments that resisted or refused to participate in aggressive federal deportation efforts did so to ensure public safety for all of their residents by preserving the trust between police and immigrant communities. So it is with the coronavirus threat: While state or federal officials can indulge in ideological dogmatism, local governments faced with the prospect of overrun emergency rooms and mass graves are less likely to prioritize such pandering over combating a pandemic.
Because the legal relationship of federal, state, and local government reflects the Madisonian insight, we have plenty of safeguards against corrupt or inept local government. But cities can’t push back when a faction captures state government. Under the federal Constitution, local government is a “creature of the state” and has only the authority and autonomy delegated to it by state constitutions and state legislatures. Consequently, local governments have been stripped of power, subsumed in other cities, put into receivership, or even dissolved by state government. And local laws are routinely preempted by state legislatures or governors. Preemption can ensure a necessary uniformity and consistency of laws (imagine a patchwork of different local laws determining when a contract is valid or setting different local standards of responsibility for accidents), and it allows states to coordinate efforts in time of crisis. But all too often preemption reflects the influence of a special interest or faction at the state level, to the detriment of common-sense solutions to pressing problems faced by cities.
Many preempted local laws addressed pressing and distinctively local problems that state legislatures either weren’t aware of, were slow to notice, or just ignored at the behest of well-connected special interests. For instance, during the financial crisis in 2001, the city of Oakland, California, sought to regulate the predatory lending that was causing mass foreclosures in its most troubled neighborhoods, leading to abandoned properties that became magnets for crime—courts deemed the regulation preempted by a weaker state law governing mortgages. When the city of New Orleans—by far the most expensive market in Louisiana—amended its charter to include a living wage provision of a mere $1 per hour over the federal minimum wage, the modest guarantee was struck down as preempted by the state. When Texas cities like San Antonio declined to devote scarce law enforcement resources to deportation, the state of Texas tried to force them to do so. Alabama, Ohio, and many other states bar cities facing epidemics of violence from regulating the sale of firearms and ammunition, leaving what are typically much weaker state laws. Perhaps it should not surprise us that today many of the same states preempt local restrictions on public gatherings over the objection of cities at the greatest risk from the coronavirus pandemic.
The founders of American democracy worried that narrow-minded localities run by people morally and temperamentally unfit for public service and captured by ideological zealots and self-interested factions were a threat to both good government and individual rights. Their solution was a centralized federal government that would attract enlightened and public-spirited people who could temper and counteract the excesses of mob rule. Today, the worst fears of the founders have been realized, but often the roles are reversed: The threat comes from the highest levels of the extended sphere. Meanwhile, hope of redemption lives in the humble public servants of our city and county government.
