Daniel B. Rosenbaum (Michigan State University – College of Law) has posted The Age of Local Non-Reform on SSRN. Here is the abstract:
In an era of aggressive state actors and often testy relationships between state and local officials, it comes as little surprise when legislatures make targeted incursions into the governance of cities and counties. Yet a spate of recent laws—arising in Tennessee, Texas, Missouri, and beyond—do not merely disable local regulatory power and squeeze small-scale nodes of democracy. Rather, these laws act to upend the basic configuration of local institutions: they amend how functions are distributed across the horizontal landscape of local government, both externally (between cities, counties, and authorities) and internally (between mayors, boards, and councils). In doing so, the laws violate a deeply-held principle of local structural autonomy that arises out of, and would appear to reinforce, a steady withdrawal of state legislatures from matters of local structure over the past thirty-plus years.
This article confronts the myth and reality of state retreat from local structural reform. It argues that the modern state approach to local structure—characterized at baseline by a system of non-reform, where states tinker with local structures while also adhering to a baseline principle of passive structural deference—leaves local governments increasingly isolated and voiceless in the federal system. Non-reform is a vertical governance system defined by negative spaces: those spaces where conversations about local structure do not occur, where structural inertia is assumed rather than questioned, and where path dependency favors yesterday’s structural choices over the value and risks of experimental reform. Non-reform preserves a precarious veneer of autonomy. Through its neutral clothing, states can erode local power while preserving a commitment to localism.
To survive these threats, local governments can draw lessons from an unlikely source: from their international peers, who operate without the same norm of autonomy but have thrived in environments of structural agitation to advocate for local interests in recent years. Indeed, a curious trend has emerged in countries that experiment with local structural change, as formerly weak municipalities accrue new powers and assert newfound national voice. On the other side of the coin, equally curious is the continued erosion of local power in the United States, notwithstanding the imagined structural autonomy held by local institutions.
The article resolves this contradiction by diagnosing the unsung localist values of systemic structural change. It discovers that a system where upper-tier governments tinker with local structure can promote durable local voice and enhanced local powers. Drawing on these findings, the article offers guiding principles for local stakeholders operating in a non-reform environment. It also offers a warning about the false complacency of local autonomy, a thin shield against which structural conversations give way to an increasingly politicized discourse, and where local values can be easily lost and subsumed by top-down policy goals.
Recommended.