Devolution and Preemption

What level of government should exercise what kinds of authority? That question has been vigorously debated throughout U.S. history. Indeed, the U.S. Constitution itself represented a radical departure from the nation’s original governance structure under the Articles of Confederation from 1776 to 1789. The Constitution established the supremacy of the federal government vis-a-vis the states, and political power has increasingly been centralized in Washington. The Civil War cemented this supremacy. By the turn of the 20th century, the Courts had interpreted the Constitution as giving states virtually unlimited power vis-a-vis their cities and counties.

In the early 20th century the municipal home rule movement gained modest autonomy for local governments. Since the late 20th century there has been a substantial move to devolve authority from Washington to state capitols. At the same time, however, Washington increasingly preempts state authority and states increasingly preempt local authority. In the 1990s a new factor was added as free trade agreements began to undermine national authority as well.

The strongest argument in favor of local control is that government works best and is most legitimate when it is most intimately connected with its citizens. The strongest arguments against local control are that it fragments decisionmaking, burdens commerce, and often leads to parochialism and an erosion of civil liberties.

As befits the complex nature of the issue, this section is different from the other parts of the New Rules. It offers insights into the many dimensions of the devolution-preemption debate and discusses initiatives that devolve authority to communities while preserving the rights of minorities.

More Information:

Environmental Ordinance – Jay

After a particularly serious chlorine dioxide leak, which could have injured thousands of workers had they been in the factory, the town selectmen instructed the town lawyer to draft an environmental ordinance. He hired environmental and constitutional lawyers, and they drafted the Jay Environmental and Improvement Ordinance, which was enacted by the people of Jay in a town meeting in May of 1988.… Read More

Federalism – Executive Order

In May 1998, President Clinton issued Executive Order 13083 on Federalism. Its centralizing language generated such a firestorm of opposition from conservatives and state and local elected officials that the House of Representatives voted 417-2 to reject it.… Read More

Local Preemption Constitutional Amendment – Michigan

Fed up with repeated state preemption of local laws, Michigan cities have spearheaded a campaign to require a two-thirds vote of the Legislature, rather than a simple majority, to pass any law dealing with an issue that could be addressed by city, county, village or township government.… Read More