Balkinization: Cities Must Govern: City Power in a Time of (Radical?) Change

Cities Must Govern: City Power in a Time of (Radical?) Change

Guest Blogger

Nestor M. Davidson

For the Symposium on Richard Schragger, City Power: Urban Governance in a Global Age (2016).

As other contributors to this on-line symposium echo, Richard Schragger’s wonderful new book City Power has taken on tremendous urgency in the wake of last Tuesday’s election. It is too early to discern the detailed policy agenda of the next administration and how uniformly Congress will support that agenda. That said, the direction of national politics in the immediate future seems likely to be highly skeptical of the need to reduce inequality, advance integration, combat climate change, and other imperatives important to progressives. With the retreat of the federal government, and with the concentration of progressives in cities (as the election also showed), cities are going to play a much greater role in debates about political values and attendant policy choices. This raises the very question at the heart of Schragger’s book: “can cities govern?” He closes with a qualified answer in the affirmative, having built a compelling case for how they should do so, but I think we are entering a political moment that poses the equally salient question “must cities govern?” Govern they must.

For a number of years, a counter-narrative to the Pete Peterson city-limits view of the role of urban governance has been that cities are, in fact, the most dynamic and engaged level of government—a view that Schragger undergirds from a legal perspective with great sophistication. The basic thrust of this view is that with national politics at a partisan standstill, cities have had to step in and have done so with creativity and pragmatism. Ben Barber’s 2013 book If Mayors Ruled the World: Dysfunctional Nations, Rising Cities—a title that speaks for itself—is an excellent example.

The role for cities as governance gap-fillers and counterweights to the federal government is all the more needed when we are facing not gridlock but instead a unified federal government that reaches the Presidency, Congress, and potentially the Supreme Court. The federal urban footprint, as Schragger notes, is not only (and perhaps not most importantly) those areas of national policy that directly act on cities as such. Certainly federal subsidies for cities—in infrastructure, emergency management, housing, education, policing, and other areas—matter, and we may see less investment all of these areas, with infrastructure perhaps a notable exception. We must also similarly remember that myriad federal programs operate through the medium of local governments and regional bodies, and these too may be in for a period of retrenchment away from more cooperative regimes.

But Schragger reminds us that the federal government also powerfully, if indirectly, sets the conditions under which cities operate and the rights city dwellers exercise. If national policy turns sharply against free trade, metropolitan regions that depend on global markets will be harmed. If national policy turns sharply against immigration, the composition of cosmopolitan urban areas will suffer. If national policy abandons any attempt to tackle climate change, cities and their residents will bear the brunt. The list can go on and on. All of this will further thrust more governance responsibility onto cities because policy challenges will not recede even if federal engagement does and cities have no choice but to confront these concerns. Indeed, New York Mayor Bill de Blasio has already announced that the city will try to shield the city’s undocumented immigrants from new federal deportation efforts, in the face of campaign vows by the President-elect to withhold federal funding from “sanctuary” cities. Similar clashes across a range of policy areas seem inevitable.

The shift in national power thus clearly exacerbates the potential for preemption conflicts. In recent years, many progressive local policies have faced state-level preemption—including over minimum wages, fair scheduling, paid sick leave, as well as inclusionary zoning, LGBTQ antidiscrimination, and even areas of public health—often as part of a well-recognized red-state/blue city dynamic. But local governments have faced federal preemption in the past as well—recall, for example, federal preemption of local efforts to combat predatory lending. Blue cities in a national political landscape now controlled by red states have much to be concerned about.

This may require us to develop new theories for protecting local authority in the face of renewed hostility to local progressive innovation. Existing doctrine seems to provide little space for resisting federal (let alone state) preemption, although there may be glimmers in Printz and other state-protective federalism decisions for some reserve of local policy discretion. But that may not be nearly enough to answer Professor Schragger’s clarion call for cities to focus their power on providing local public goods and tackling economic inequality, if those efforts draw federal challenges.

One other aspect of city power that will be increasingly important in an environment in which progressive politics survives largely at the local level is the necessity for efficient, competent city governments. Schragger in City Power seems somewhat ambivalent about the actual mechanics of governance. While recognizing the potential for cities to make meaningful change for their residents, Schragger argues that in the context of urban growth and decline, policy and policy implementation is not determinative, given the larger forces cities face. Schragger is also deeply skeptical of what he calls “technocracy,” arguing that administrative aspects of city governance stand in tension with democratic participation and undermine efforts at social and redistributive economic policy. I think Schragger makes a compelling case that it is difficult to link any given policy to long-term urban trends. But building institutions at the local level capable of carrying out policy effectively genuinely matters for the day-to-day quality of urban life. We may not like bureaucracy, but now more than ever, we dearly need the machinery of city governance to work.

All to say, Schragger’s account of city power arrives at a moment when national politics has suddenly made the responsibilities of cities much more immediately pressing, and the new conception of urban governance he offers could not be more timely—and more vulnerable.

Nestor M. Davidson is Associate Dean for Academic Affairs, Professor of Law, and Faculty Co-Director of the Fordham Urban Law Center at Fordham University. You can reach him by e-mail at ndavidson at law.fordham.edu

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