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Sarasota Thursday, Aug. 8, 2019 3 months ago

The power and limits of home rule

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In recent years the Florida Legislature has gone after home rule polices restricting guns, vacation rentals, plastic bags and tree ordinances, just to name a few. When is overriding home rule merited?
by: Adrian Moore Contributor

In Florida the principle that “the government that’s closest to the people governs best” is enshrined in law. The state constitution establishes “home rule,” and the 1973 Municipal Home Rule Powers Act further clarified that local governments can establish rules and laws as they see fit locally unless specifically proscribed by state law.

Adrian Moore

The parallel to states’ rights is obvious. But just as the federal government has many times overridden states’ rights, asserting that there are some policies on which state governments might not differ, sometimes the Florida state government proscribes by law certain local government policies.

The question is, when is overriding home rule merited? The answer is not a simple one. In recent years the Florida Legislature has gone after home rule polices restricting guns, vacation rentals, plastic bags and tree ordinances, just to name a few.

The Power of Home Rule

Home rule is compelling and embodies Justice Brandeis’ idea of “laboratories of democracy,” wherein state or local governments can try various policies and laws and perhaps discover what works well and what does not, without everyone suffering through the trials of the ones that fail. The opposite of “one size fits all.” One can easily imagine cities in the panhandle and cities in southern Florida choosing to govern themselves with radically different policies. And people can always “vote with their feet.”

Home rule might help bind communities together, a shared vision driving laws and regulations the way local folks want to see it done. It also might lessen conflicts created by trying to impose one-size-fits-all laws on communities that don’t agree. Enforcement of laws is arguably much easier and much less costly if there is broader community agreement that these laws match this community.

Home rule might lessen political tensions because people feel more in control of the rules they live under and more able to live in a community with rules they like. And people might participate in local government more if most decisions were made there instead of in far-off state or national capitols.

Finally, home rule prevents consolidation of power. No one thinks the Legislature knows all and can make all rules effectively, but it might be willing to try. Home rule ensures a balance of power in the same way that states’ rights balance the powers of the federal government.

It’s easy to see why the idea of home rule is so popular. It resonates with how most of us think government in America should work. It seems fundamentally more fair and more likely to lead to happy citizens than does centralized lawmaking at the state capital. But it has limits.

The limits of home rule 

Our nation was founded on the notion of citizen rights. So the first limit of home rule is that local governments can’t trample rights. Just as you can’t have a city with laws that say “whites only” or “no gays,” you can’t have laws that say “no guns” or “no renting homes.” The problem is that the lines get harder to determine in the latter cases: At what point do restrictions on guns cross the line on gun rights? At what point do restrictions on vacation rentals cross the line on property rights?

"[A] state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

— U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann, 1932

The Florida Constitution says this should be up to local governments to figure out, unless the Legislature decides to step in. The Legislature might have a different opinion on where the line of rights is. Indeed, the ability to appeal to the state for protection from local trampling of rights is crucial to our democratic system of checks and balances.

At the same time, home rule depends on a world in which people can easily vote with their feet and where local decisions are much more of a consensus than we typically see in practice. People have ties to a place. They own property, have a job, own a business, have family or friends. They don’t pick where to live primarily, or even to any discernible extent, based on the local laws.

Nor are local policy decisions based on anything like consensus democracy. To the contrary. About 75% of adults in Florida are registered to vote. In the 2018 election, 63% voted. So less than half of adults are participating in the decision at all. And if a given law or policy is supported by a whopping 80% of voters, that means it is supported by 38% of adults. That is nowhere near a majority, nowhere near a consensus. You cannot believe that the outcome of that decision represents community agreement that law is good and desirable. Most people put their time and energy into living their individual lives and not into community decision-making.

The ideal of home rule is not how it works on the ground.

There are a few other challenges to home rule as well. It could create confusion and costs for statewide businesses having to deal with completely different rules in every community or tourists having to find out what the rules are in the city they are staying in because they can’t assume common rules statewide. Home rule might encourage division and segregation by race or wealth as communities adopt rules that separate people. It also can prevent unified statewide action on policies where the whole is greater than the sum of its parts.

Home rule can also encourage inaction, with state government saying it’s a local issue and local governments pointing to the state. Red tide, ‘nuff said.

Balance

There is no silver bullet answer to home rule versus state law, but I hope looking at both sides helps you to see the necessary balance. I find myself sometimes on the side of local autonomy and sometimes on the side of the state intervening. Home rule is good, for all the reasons listed above, and should be fostered to the greatest extent possible. But it is also flawed and cannot possibly achieve its ideals, so it needs oversight and sometimes the state needs to step in. We the citizens must push back when either of them oversteps the balance. It seems to me that push and pull to find the balance is exactly what has been going on in recent years.

Dr. Adrian Moore is vice president of Reason Foundation and lives in Sarasota. 

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