Avoiding Local Constitutional Difficulties

Not long ago I did a series of posts about situations in which constitutional interests are regulated by offering an institution a constrained choice that is between a command and an unfettered choice. While I described that idea as a "constitutional liability rule," I now think it should be called a "constitutional property rule," because what is at issue is how bodies bargain over the cost of autonomy. Basically, the point is that sometimes we are better off with a structure that permits certain outcomes but makes them more costly to achieve.

The application of this concept that I have in mind involves local government. With respect to federal and state statutes, courts apply (albeit inconsistently) an interpretive canon that the text should be read, if possible, to avoid constitutional difficulties. We have also have clear statement rules in certain contexts that further a similar goal. And federal courts will sometimes certify ambiguous state law issues when doing so might eliminate the need for a sensitive federal constitutional ruling.

One area where we do not take this cautious approach is where a local government enacts a controversial policy pursuant to its "police power" authority from the state. Suppose a city council or school board wants to use race-conscious remedies, put the Ten Commandments on local property, or ban guns from a certain area. A federal court reviewing a challenge to such a policy almost never asks whether the town was authorized by the state to do these things. The assumption is that unless an action is prohibited by state law, local bodies are free to do as they wish under whatever general enabling statute or state constitutional provision gives cities the power to be cities.

Why should this be the presumption? Why doesn't it make more sense to read a town's authority narrowly when constitutional rights are at stake? The upshot of this is that certain local practices would only be permissible if the state expressly authorizes that city (or all cities within the state) to undertake the practice. This would, of course, make it less likely that a constitutional question would arise, because the underlying decision would need wider support and receive greater scrutiny. Put another way, this interpretive approach would raise the cost of doing certain problematic things without prohibiting them.

The current approach to constitutional avoidance has things somewhat backwards. We care a lot about ensuring that Congress speaks clearly on difficult subjects, even though its internal political and institutional checks are relatively robust. With respect to local government, those kinds of constraints are far more limited (or nonexistent), yet we don't impose an equivalent limit on the law that typically gives cities their authority. I think that this is misguided, at least when a party is making a facial challenge to a local ordinance.