There is a strong commitment to states’ rights in American political culture, and an even deeper dedication to local control. As a result many public goods and services in the United States are provided locally, with little or no federal participation. Others involve federal agencies only because counties, cities, and special districts accept grants-in-aid for projects of mutual interest to local and national policy makers. Most federal-local relations revolve around these grants and their administration, and the interactions are generally collaborative, although federal restrictions on the permissible use of grants is sometimes a chafing point.
The federal government does not rely solely on grants to obtain cooperation from local governments, however. Within limits, Congress can require local governments to perform certain functions, and it can prohibit them from acting contrary to national policy on civil rights or environmental policy, for example. Such compulsion breeds resentment at the local level, and if enough areas are affected, the political backlash may force Congress to seek more cooperative means of obtaining compliance. This is most likely to happen when governors and legislators ally themselves with local officials, presenting a united front to their elected representatives in Congress, who are, after all, elected within states.
Some localities are entirely under federal jurisdiction and have no voting representatives in Congress. In these areas, federal agencies act as the local government, or decide how that government is constituted, and by whom. Consider the nation’s capital, which occupies most of the federal District of Columbia. For a century after the Civil War, three commissioners appointed by the president governed the City of Washington, subject to the approval of standing committees in Congress. In 1967 the commissioners gave way to a mayor and council appointed by the president, but pressure for greater powers of self-determination led to passage of a Home Rule Act in 1973. The act confers powers on a locally elected council and mayor, but Congress retains control over the district’s budget and has the authority to overturn local ordinances. The Senate confirms presidential nominees to the local judiciary, too, fueling demands for voting representation in Congress and even statehood, which Congress has so far refused, not only for the District of Columbia, but also for the Commonwealth of Puerto Rico, and the Pacific possessions of the United States.
Congressional control over local areas extends far beyond the District of Columbia. During the nineteenth century, land purchases, wars, treaties, and the conquest of native lands greatly expanded the United States. The territories were administered militarily until Congress organized them politically, enacting laws; establishing territorial governments; confirming the appointment of territorial governors, judges, and marshals; and financing administrative operations. As their numbers increased, the people of each territory sought admission to statehood under a constitution of their own making and eventually became full-fledged members of the Union.
Federal control over local affairs did not end when territories became states, however. Pursuant to Article Four, Section 3 of the Constitution the Congress typically reserved large parcels of territorial lands for national use as a condition for granting statehood. Thus, military reservations are found everywhere in the United States, and they are controlled by the U.S. Department of Defense. More to the point, bureaus within the Department of Defense function as local governments, governing more than 11 million acres, mostly in western states. They control access to these lands and their use. Sometimes this leads to friction with neighbors, but nearby communities also benefit economically from military bases. Some become so dependent that a decision to close obsolete bases threatens them with economic ruin and triggers resistance from members of Congress whose constituents might be affected.
Additionally, more than 55 million acres of federal land have been reserved for 326 Native American tribes, most of them in the West. The reservations are controlled by tribal governments, which operate independently of state governments and their subdivisions. However, tribal governments are not independent of Congress, which has plenary power over these “domestic nations,” just as it controls insular territories. In the past, Congress used its power to abrogate treaties, dilute tribal ownership of lands, and regulate tribal governance. Recently, Congress has limited the jurisdiction of tribal courts in criminal cases, but it seems inclined to respect the autonomy of tribes in civil matters.
Nonetheless, tribal jurisdictions sometimes frustrate state agencies charged with managing fisheries and other natural resources, as well as county governments that must provide infrastructure in the form of public access to Indian gaming facilities. Properly understood, these are interjurisdictional disputes that would ordinarily be resolved at the state level, but which involve Federal questions when tribes are involved. Congress has the authority, but also the responsibility, to police these disputes, much to the chagrin of state legislatures.
The Indian Gaming Regulatory Act of 1988 conferred on tribes the option of developing gambling facilities on tribal lands, even in states where gambling of any sort was either prohibited, or tightly regulated. States receive a portion of the proceeds under compacts negotiated with tribes, but states have also begun to tap revenues from gambling directly, entering into competition with tribes by authorizing “racinos” that permit betting on local horse races, and offer video poker and similar forms of wagering.
Finally, large tracts of federal land are reserved for national parks (79 million acres), fish and wildlife management (89 million acres), national forests (193 million acres), and grazing (248 million acres). The lands are managed by the National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service, and Bureau of Land Management, respectively. These agencies decide who may use federal lands, when, and for what purposes. Their decisions are not subject to local or state control, and are frequently criticized by people who live near the affected areas and want access to public lands.
All told, federal land reservations consume more than half of the total land area of 13 states west of the 105th meridian. Federal lands make up 62 percent of Idaho, 63 percent of Utah, 61 percent of Alaska, and nearly 80 percent of Nevada. Not surprisingly, land-use policy is a persistent source of conflict between federal agencies and western state and local governments. During the late 1970’s and early 1980’s, resentment of federal regulation of public lands peaked in the western states; the Sagebrush Rebellion, as it was known, culminated in Ronald Reagan’s appointment of Colorado’s James Watt as secretary of the interior. Every interior secretary since then has come from a western state, and federal policy has become more responsive to local sentiments. Even so there is sentiment in the west for greater control over Federal lands by state governments, which sometimes enjoy support from tribal governments seeking to develop natural resources, not to mention private entrepreneurs offering to manage the lands in question.
Even more significant than the acreage of local land under federal jurisdiction is the large number of local governments formed under state constitutions across the nation. The autonomy of these 90,000 governments varies from state to state, but is generally increasing as legislatures delegate powers and assign responsibilities to communities. As far as the federal government is concerned, however, local governments are under state control, and this has two important implications.
First, state agencies usually mediate formal relations between federal agencies and local governments. Federal officials rely on state officials to obtain local compliance with program requirements, and state officials seek to coordinate and control interactions between their local governments and federal units. Local governments sometimes forge direct ties with federal agencies, but for the most part they rely on political connections. During the 1960’s, for example, big-city mayors were aligned with Democrats in Washington who supported urban redevelopment programs. When Richard Nixon became president, federal policy shifted in favor of suburban officials, who tended to be Republican. Politics and administration are inevitably conjoined in federal-local relations.
Second, the Constitution limits the powers of Congress over states, and those same limits protect local governments insofar as they are constituted by states. Thus, Congress is in no position to order local governments to do its bidding, except when exercising powers exclusively assigned to it by the Constitution (in the judgment of the U.S. Supreme Court). Lacking broad powers of compulsion, Congress ordinarily secures cooperation from state and local governments by offering financial compensation for doing what it wants them to do.
As Tip O’Neill (D-MA), former speaker of the House of Representatives, famously observed, “All politics is local.” He was referring to the propensity of elected Representatives to understand national policy in terms of its effects on their constituents, and to view their constituents’ concerns as problems requiring national attention. “Pork barrel” legislation is the best-known example of this orientation: representatives and senators bring home the bacon by passing legislation that benefits constituents in their districts and states.
Grants-in-aid are related to pork barrel spending. Such grants provide matching funds for constructing roads, sewage treatment facilities, and other elements of municipal infrastructure, or subsidizing education programs, public housing, social services, public assistance, and a host of community development projects. Many of these grants are awarded on the basis of population or need, and are available to all local governments that qualify. Increasingly, federal grants allow considerable discretion over the use of funds by local authorities, who complain about categorical grants with too many strings attached. These features explain the popularity of grants in city halls and state capitals—and hence Congress’s enthusiasm for grants.
Indeed, the number of grants has grown steadily over the years as Congress created more incentives for local governments to fulfill its wishes. There are now more than a thousand federal grant programs providing more than $700 billion in annual assistance to state and local governments. About 10 percent of that amount flows directly to local governments. The remainder goes to state governments, though much of it earmarked for local use and must be passed along to counties, cities, and special districts. Thus, local government spending on public goods and services is quite heavily subsidized by the federal government, particularly in economically deprived areas.
Sometimes Congress simply imposes new responsibilities on state and local governments without providing additional funds. State and local officials strongly resent these “unfunded mandates,” which override subnational policy objectives and political priorities. Indeed, the proliferation of unfunded mandates led to calls for greater restraint on the part of Congress, but the political incentive to address national concerns without raising federal taxes is very strong, so mandating continues.
Two examples make this point. The Americans with Disabilities Act (ADA) was signed into law with great fanfare in 1990. It prohibits discrimination against persons with disabilities in employment, government services, public accommodations, commercial facilities, and transportation. Many ADA provisions affect businesses, but state and local governments are required to make their facilities accessible to people with disabilities, too. This includes public buses and transit stations, which must be equipped with wheelchair lifts and related equipment. These capital improvements are costly, and they are not covered by federal funds. To comply with the mandate, state and local officials must decide whether to increase taxes or divert resources from programs that are popular with businesses, unions, taxpayers, and other potent interest groups.
Federally mandated environmental protection is even more costly. The Clean Air Act, Clean Water Act, and Safe Drinking Water Acts are administered by the Environmental Protection Agency (EPA), which sets minimum standards of air and water quality for the nation. The EPA also monitors state and local governments’ progress in meeting these standards by regulating polluters under their jurisdiction. If progress is not made, the EPA can assume control, depriving states and localities of their traditional role in environmental policy making. Local governments must therefore compel factories and businesses to reduce emissions, and they must insure that municipal power plants meet EPA standards. They may even regulate auto and truck usage or provide alternatives in the form of mass transit, since gasoline-powered engines are a major source of air pollution, although the shift to electric cars and trucks may offer relief on this front.
Similarly broad measures are required to meet the EPA’s water quality standards. Point-source pollution must be controlled, storm water runoff must be contained, and sewage must be treated—and most of the enforcement and treatment are done by local governments. During the 1970’s, Congress made grants-in-aid available for treatment plants and the like, but these have been replaced by loans that must be repaid. Local governments also find it necessary to regulate growth patterns in order to protect watersheds, which brings them into conflict with developers, construction companies, and property rights advocates. Hence local officials bear the political costs, while Congress and other national officials reap credit for protecting the environment. In both of these examples, local officials (or at least many of them) have the same goals as Congress; they want to make public services accessible to people with disabilities, and they certainly want constituents to enjoy clean air and water. But local officials also want more flexibility when implementing policies that affect them deeply; failing that, they want more money from Congress to carry out its bidding. Congress has its own mandate, however; voters want policy makers in Washington to guarantee their rights and protect them from environmental hazards, without raising income taxes. Federalism allows Congress to satisfy these conflicting desires by delegating responsibility, while retaining control over policy.
The federal government not only compels state and local governments to perform actions favored in Washington, D.C., but also proscribes state and local actions that conflict with national policy. For example, mayors and city councils might want to protect local businesses and their employees from foreign competition and interstate commerce, but the Constitution reserves those powers to Congress. Neither can local governments restrict immigration or enforce laws against illegal immigration in order to limit the demand for public services. Only Congress has the authority to regulate immigration. Here and in other areas, federal law is supreme; it preempts the right to self-determination at the local level.
Political considerations limit the exercise of federal power over local governments; members of the House of Representatives are elected from local districts, and senators have local roots, too. For this reason, Congress prefers to use grants-in-aid and other means of persuasion to get its way. The Supreme Court does not have this luxury, and some of the most visible examples of federal intervention involve the judicial enforcement of civil rights. Under the U.S. Constitution, individuals are entitled to equal protection under the law. Consequently, state and local governments cannot discriminate on the basis of gender, race, religion, or political creed, even if local or regional sentiment favors disparate treatment of one sort or another.
It was not always so. National guarantees of civil rights were not added until 1868, when the Fourteenth Amendment was ratified. Even then the Supreme Court responded conservatively, construing “equal protection” and “due process” quite narrowly. In Plessy v. Ferguson (1896), the Court upheld the constitutionality of a Louisiana law requiring the segregation of races in public transportation. State laws and local ordinances providing “separate but equal” facilities proliferated after the Court’s ruling, with particularly pernicious effects in public schools.
In Brown v. Board of Education (1954), the Supreme Court overturned Plessy, holding, “Separate educational facilities are inherently unequal.” The Court subsequently ordered local school systems to desegregate with “all deliberate speed,” but state and local authorities in the South resisted the rulings. In September 1957 Governor Orval Faubus ordered the National Guard to surround Central High School in Little Rock, Arkansas, preventing African American students from entering. A federal judge voided the order, but angry whites threatened the safety of anyone who crossed the color line until President Dwight D. Eisenhower sent troops from the Army’s 101st Airborne Division to maintain order.
Desegregation was required in many urban school systems outside the South, too. Federal judges in Boston, Detroit, Denver, and several other cities ordered districts to achieve racial balance within their schools. Busing was mandated, with African American students being transported to schools that were predominantly white and, less commonly, white students being transported to schools that were predominantly black or Hispanic. Tensions erupted, and many white parents either enrolled their children in private schools or fled to the suburban school districts. Judicial activism in this policy area then subsided.
“White flight” to the suburbs contributed to the resegregation of neighborhoods, and hence public schools in the United States today. It is also associated with complaints about “driving while black” in suburban municipalities. In turn, that has triggered efforts to discourage police practices deemed racially discriminatory by federal officials. Thus, President Barack Obama directed the U.S. Department of Justice to be more aggressive in monitoring the conduct of fourteen local police departments where there was evidence of racial profiling in law enforcement. This lead to consent decrees in which local authorities agreed to abide by restrictions imposed by the U.S. government to ensure equal protection under the law.
The police department in Ferguson, Missouri, was one of the local departments placed under federal monitoring after a white police officer shot and killed an African American male, which triggered several days and nights of violent protests. However, President Donald Trump subsequently objected to these agreements and instructed his Department of Justice to cease supervising of local police conduct.
As the enforcement of civil rights shows, federal involvement in local affairs ebbs and flows. The level of federal involvement depends on who is president, and which party controls Congress, and what domestic policies they pursue. Generally speaking, Democrats use categorical grants-in aid, as well as tough mandates and prohibitions, to assert federal leadership in local affairs. Republicans strive to minimize “coercive federalism,” and they prefer less restrictive, though not necessarily smaller, grants-in-aid. Changes in party control at the national level usually produce changes in federal-local relations, in accordance with new ideas about the appropriate role of federal government in our lives.
Of course, a reduced role for federal government may not mean less government for all; that depends on what state governments do, in the absence of Federal guidelines. Some state governments will fill the void, others will not, and so citizens’ experience of the rule of law may depend on where they live in the United States, not what they do.
SEE ALSO: Americans with Disabilities Act of 1990; Brown v. Board of Education; Civil Rights Act of 1964; Coercive Federalism; Crosscutting Requirements; Crossover Sanctions; Eisenhower, Dwight D.; Environmental Policy; Formula Grants; Fourteenth Amendment; Grants-in-Aid; Guarantee Clause; Home Rule; Land Use; Native Americans; Pass through Requirements; Plessy v. Ferguson; Public Lands; Revenue Sharing; Roe v. Wade; Safe Drinking Water Act of 1974; Sovereignty; Special Districts; State Constitutions; States’ Rights; Supremacy Clause: Article VI, Clause 2; Unfunded Mandates; U.S. Territories
Robert Agranoff, Crossing Boundaries for Intergovernmental Management (Washington, DC: Georgetown University Press, 2017); Timothy J. Conlan, “Intergovernmental Relations in a Compound Republic: The Journey from Cooperative to Polarized Federalism,“ Publius: The Journal of Federalism, 47, 2 (2017): 171-187; Robert J. Dilger, Federal Grants to State and Local Governments: A Historical Perspective on Contemporary Issues (Washington, DC: Congressional Research Service, June 22, 2017); and Kevin Frazzini, “This Land is Whose Land?” State Legislatures (July-August 2015): 30-33.