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