Why Your City Can't Do That, Dillon's Rule and Home Rule Explained

The council votes to ban something, tax something or declare itself a refuge for something, and the mayor holds a press conference as though a new republic had been founded. Then the statehouse passes a bill, the governor signs it, and the new republic is dissolved by Tuesday. The council is outraged. The cameras arrive. And everyone asks the same question: can they do that?

They can. Cities, in the American system, are not sovereign. They are not the third level of a federal government. They are creatures of the state, created by it, given such powers as the state grants, and in most cases open to being overruled by it. That is a fact about law, not a verdict on whether it is wise, and it explains a lot of the headlines about plastic bags, minimum wages, firearms and sanctuary policies. Let me walk you through the three ideas that make it work: Dillon's Rule, home rule and preemption. Then we'll get to the part where conservatives disagree among themselves.

Where the Constitution says nothing about cities

Start with a surprising fact. The U.S. Constitution never mentions cities. It names the federal government and the states, and the Tenth Amendment reserves to the states, or to the people, the powers not given to Washington. Local governments are not in the picture. They get their authority from state law, and that law starts with the state constitution and the statutes passed under it.

The Supreme Court said so bluntly in Hunter v. City of Pittsburgh in 1907. The Court held that municipal corporations are political subdivisions of the state, created as convenient agencies for exercising the state's powers, and that the state may, as a general rule, modify or abolish them, enlarge or reduce their powers, even over the objections of the people who live there. Whatever the Fourteenth Amendment protects, the Court said, it does not give a city a right to be left alone by its own state.

So the question is never "does a city have power?" It is "how much did the state give it, and how did the state say it?" The states answered in two very different ways.

Dillon's Rule: the narrow reading

John Forrest Dillon was a judge in Iowa. In 1868, as a member of the Iowa Supreme Court, he wrote the opinion in a case called City of Clinton v. Cedar Rapids and Missouri River Railroad Company. Four years later he published a treatise, Commentaries on the Law of Municipal Corporations, that spread his view across the country.

The rule he laid down is easy to state. A city has only the powers that fall into three groups. First, those granted in express words by the state. Second, those necessarily or fairly implied in, or incident to, the powers expressly granted. Third, those essential to the declared purposes of the city, not merely convenient but indispensable. And if there is any fair, reasonable doubt about whether a power exists, the doubt is resolved against the city and the power is denied.

Think about that for a minute. Under Dillon's Rule, a city that wants to do something has to find the permission slip. If it cannot find one, it does not get to act. The state is the parent, and the city is the child who has to ask.

Why would anyone want this? There were reasons in Dillon's day. Cities in the nineteenth century were notorious for corruption, bad debt and rash spending, and some had gone bankrupt on bad railroad investments. Judge Dillon thought the courts should hold the line. A narrow reading of city power was a way to protect taxpayers from municipal adventures.

Today, many states still follow Dillon's Rule in some form, for all of their local governments or for some types, such as counties. If you live in one, the state legislature's website and a call to the city attorney will tell you.

Home rule: the other reading

The counter-movement began soon after. Thomas Cooley, a leading Michigan jurist, argued in 1871, in a concurring opinion in People ex rel. Le Roy v. Hurlbut, that local self-government is an inherent right of the people that the legislature cannot take away. His view became known as the Cooley doctrine, and it kept the reform conversation going for decades.

Missouri wrote the first home-rule provision into its constitution in 1875, letting the city of St. Louis adopt its own charter. Other states followed through the twentieth century. The idea is that the state constitution or a statute grants cities a general power to govern their own affairs, so they do not have to find a permission slip for every act. A city with a home-rule charter can act unless the state has said no.

There are two broad flavours. In some states, home rule is written into the constitution, which means the legislature cannot easily take it back. In others, it is a power the legislature grants by statute and can revise. Iowa, the birthplace of Dillon's Rule, adopted its own home-rule amendment in 1968, an irony the Hawkeye State seems to bear with good humour.

But here is the point to hold on to: home rule is not independence. Even a home-rule city operates under the state constitution and state law. A typical home-rule clause covers "local affairs" or "municipal affairs," and when a matter becomes one of statewide concern, the state law wins. Courts spend a lot of time deciding which is which.

Preemption: how a state overrules a city

Preemption is the working tool. It simply means that a higher level of government has made a rule that takes priority over a lower one. The U.S. Constitution's Supremacy Clause does this between the federal government and the states. State preemption does it between the state and its cities.

Preemption comes in a few forms. A state can pass a law that expressly says local governments may not regulate a subject. It can set a rule so comprehensive that it leaves no room for a local one. Or it can set a floor and let cities go higher, or set a ceiling and forbid it.

Here is where the headlines come from.

• Plastic bags. Some cities passed bans on single-use plastic bags; some states responded with laws that forbid local bans. In Texas, the courts held that the state's solid waste law preempted the city of Laredo's bag ban.
• Minimum wages. The city of Birmingham, Alabama, passed an ordinance in 2015 raising the local minimum wage, and in 2016 the Alabama legislature responded with a law setting a statewide standard that cancelled it. Other states have done the same.
• Firearms. Most states preempt local gun regulation, on the theory that a citizen who carries lawfully should not need to check a different rulebook at every city line.
• Sanctuary policies. In 2017 Texas passed Senate Bill 4, which barred local governments from adopting policies that prohibit cooperation with federal immigration enforcement, and the Fifth Circuit upheld most of the law in 2018. California went in the other direction with its own state law in 2017, which limits cooperation and which some California cities have objected to in turn.

Notice that preemption is a tool used by statehouses of both parties. A Republican legislature overrules a progressive city; a Democratic legislature overrules a conservative county. The direction of the arrow depends on who holds the pen.

The strongest argument for local control

Now the conservative disagreement, and it is a real one. Here is the case against preemption, stated at full strength.

Conservatives believe in subsidiarity, the idea that decisions should be made at the lowest level capable of making them. We say the family should decide before the village, the village before the county, and the county before the state. We say that one-size-fits-all rules from distant capitals are the problem with Washington. If that is our principle, why do we cheer when Austin or Tallahassee overrules a city council? Isn't a statewide rule from the capital just a smaller version of the Washington mandate we complain about? And what if the city is right? A community of a certain size and character may want a rule that suits its residents, and a legislator from three hundred miles away may know less about it than the neighbours do.

That is a fair challenge, and the folks who raise it are not being cute. Some of the most thoughtful conservative scholars have raised it. Madison's Federalist 51 argues for dividing power so that each division checks the others, and a state that overrides every local decision has removed one of the divisions.

The answer: a test, not a team

Here is how I'd answer. Local control is the right default, and preemption needs a reason. The reason cannot simply be "we disagree with the council." Here is a test with four questions.

1. Does the local rule fall on people who had no vote? A city ordinance that regulates only the residents who elected the council is a local matter. A rule that binds commuters, delivery drivers, visitors and businesses from outside the city is exporting costs to people who cannot vote against it.
2. Does it create a patchwork? A contractor who works in twelve towns should not need twelve rulebooks for the same thing. A trucker, a hunter or a licensed gun owner crossing a county line should not be in violation of a different law every ten miles. Uniformity has value when the activity crosses boundaries.
3. Does it touch a right? Where a local rule restricts a right that the state or federal constitution protects, such as property, speech or the right to keep and bear arms, the state has a duty to step in. Rights should not depend on your zip code.
4. Does it conflict with a clear state policy that applies across the board? If the legislature has made a statewide judgment, say about a tax or a license, a city should not quietly reverse it.

If the answer to those questions is no, the state should keep its hands off. If yes, preemption may be justified. By that test, some preemption laws are principled and some are bullying, and honest conservatives will argue about which is which. The same test works when the shoe is on the other foot. A conservative county in a blue state deserves the same respect.

What to do if your city "can't do that"

If you want to know where your city stands, here is the checklist.

1. Find your state's rule. Look for the local-government article of your state constitution on the legislature's website. It will tell you whether the state follows Dillon's Rule or grants home rule.
2. Read your city's charter. If it is a home-rule city, the charter lists what the city can do. The municipal code is usually online.
3. Check for preemption. If a city ordinance is challenged, look for a state statute on the subject.
4. Ask the city attorney. Public officials answer questions about their own authority. Ask them to cite the source.
5. Go to the legislature. If a state preemption bill is pending, you can testify. Your state representative's office is the place to start.

For the relevant constitutional background, State Constitutions Versus the U.S. Constitution, Side by Side explains how state charters differ, and Subsidiarity Is the Old Idea Behind Keeping Power as Close to Home as Possible covers the principle in depth. On the immigration side of the issue, The Tenth Amendment Defense of Sanctuary Cities, and Where It Runs Out and The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities show why the same constitutional rule cuts both ways. For how a state turns a preemption idea into law, see How a Bill Becomes State Law, From Idea to the Governor's Desk, and for a look at three towns under three rulebooks, Three Towns, Three Rule Books and the Case for Letting States Differ.

The bottom line

• Cities are creatures of the state. Hunter v. City of Pittsburgh (1907) says a state may change or abolish its local governments, and the Constitution does not mention them.
• Dillon's Rule, from an 1868 Iowa case, says a city has only the powers the state expressly gave it or that are necessarily implied. Home rule, first written into Missouri's constitution in 1875, flips the default so a city may act unless the state says no.
• Preemption is how a statehouse overrules a city, and both parties use it. Plastic bags, minimum wages, firearms and sanctuary policies are the usual battlegrounds.
• Conservatives should test each preemption law instead of cheering by team: who bears the cost, is there a patchwork, is a right at stake, and is there a clear statewide policy?
• Find out which rule your state follows, and go to the council meeting before the problem becomes a headline.