Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities | jgersen | August 23, 2017


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Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities

by jgersen



The United States is governed using a system of federalism. This means that both the federal and state governments have their own spheres of responsibility and authority. The U.S. Constitution limits the areas over which the federal government has authority, leaving certain areas to the states to govern exclusively. The federal government is not allowed to directly govern those areas. In the areas where the federal government does have authority to govern, federal laws generally override state laws.


The interplay between state and local governments works slightly differently. Local governments do not have any express authority under the U.S. Constitution. Instead, local governments have the power given to them by their state under that state’s constitution or statutes. Thus, all states have the same amount of constitutionally-derived power and authority vis-à-vis the federal government, but they determine on their own how to apportion this state power between the state and local governments. This means that the amount and type of authority given to local governments varies greatly from state to state and, as described below, can even vary from city to city within one state. Because there is so much variation in local governments’ authority, this toolkit cannot lay out all of the specific authorities given to local governments in each state, but will help to provide you with some tools to figure out what powers your local government has.


The interplay between Native American tribal governments and state or federal government is a bit more complicated. In the U.S., Native American tribes are considered to have “tribal sovereignty,” a term that describes “the right of federally recognized tribes to govern themselves and the existence of a government- to-government relationship with the United States.” This also means that a tribal group has “the right to form its own government, adjudicate legal cases within its borders, levy taxes within its borders, establish its membership, and decide its own future fate.” As a result, tribes cannot be preempted by state laws like local governments can; however, they can be preempted by the federal government. State law can only preempt tribal law when Congress has given that state the authority to do so. While this interplay is worth noting, as the focus of this toolkit is on local governments, our analysis of tribal law is limited. * * *  


HOW LOCAL GOVERNMENT GETS THE POWER TO ACT State laws play a significant role in local government. First, because local governments do not have any power except that given to them by the state, the state constitution or state legislation must authorize local governments to act in certain ways. Second, because state laws can preempt, or bar, local authority to act on certain issues, states almost always have ultimate authority over local governments. Third, because statewide rules and regulations must generally be followed in all local areas, state laws play a significant role in local areas. When recommending policy change, food policy councils need to understand how their locality gets its authority and what types of powers it does or does not have. In order to conserve their energy to push for policy changes that are actually possible for the city or county to enact, food policy councils should be sensitive to the restrictions their municipality faces with regard to the ability to enact certain types of laws or regulations.


General Background: Dillon’s Rule & Home Rule In general, local governments have no inherent powers granted to them by the U.S. Constitution. Judge John Dillon of the Iowa Supreme Court recognized this fact over 100 years ago, which is why this lack of local power is now known as Dillon’s Rule. Dillon’s Rule holds that local governments have only those powers that are expressly given to them by the state; according to Dillon’s Rule, local governments only have those powers that are:

  • “granted in express words;
  • necessarily implied or necessarily incident to the powers expressly granted; and
  • absolutely essential to the declared objects and purposes of the corporation— not simply convenient, but indispensable.”

Therefore if the power in question is not expressly authorized by a state statute or the state constitution, or cannot be implied directly from another authorized power, it is presumed that a municipality does not have that power. States that are considered Dillon’s Rule states, or that do not give broad Home Rule powers to local areas, including Arkansas, Connecticut, and New York, generally depend on the state legislature for legislation enabling them to act. In such states, local governments generally get some authority to act from state enabling statutes, which limit the authorization of local power to a particular defined area. An enabling statute is a “law that permits what was previously prohibited or that creates new powers.” In this context, this means a statute giving local municipalities the authority to enact local ordinances on particular topics. Absent enabling legislation, cities in these states might not have the authority to enact ordinances or take action on certain food policy matters. In New York, for example, municipalities were not allowed to permit community gardens on land they held until 1978, when the legislature passed enabling legislation granting them that ability. It is worth noting though that while Dillon’s Rule was originally intended to be strictly construed, some courts have more recently interpreted the granted powers broadly. 


Home Rule, on the other hand, is a broad grant of power from the state that allows municipalities to independently handle local matters without the need for special legislation by the state, as long as the municipal laws do not conflict with state laws. This power to exercise certain functions is transferred from the state to local governments through the state’s constitution or state legislation. Whether the power originates from the former or the latter, Home Rule powers are shaped by the language of the delegation from the state legislature or the interpretation of this delegation by state courts. Thus, even though “all but few states have some form of home rule authority,” the specific details of the power granted varies from state to state. 


The majority of the states with Home Rule authorization also give municipalities the permission to enact a Home Rule Charter, which is a “local government’s organizational plan or framework, analogous to a constitution, drawn [up] by the municipality itself and adopted by popular vote of the citizenry.”  A typical Home Rule grant allows a local government to “make and enforce local police, sanitary and other regulations as are not in conflict with [the municipality’s] charter or with the [state’s] general laws,” while others provide authority over any local matter that is “not expressly denied by [the state’s] general law or [the municipality’s] charter.” Unlike with enabling statutes, under Home Rule, when authorization is vague, it is assumed that the municipality has the power unless it is explicitly denied. If your state has granted municipalities broad Home Rule authority or allowed Home Rule Charters and your municipality has enacted such a charter, your municipality will likely have greater independence, and its powers may be controlled by this charter, rather than by state enabling statutes.


As it is unclear what constitutes a “local matter,” interpreting the exact scope of the power granted to local government is usually left to the discretion of the state legislature (if Home Rule was granted through legislation) or state courts (if Home Rule was granted through the state constitution). Either way, it is clear that the scope of Home Rule authority varies greatly depending on each state’s authorizing language and how that language is interpreted. For example, it would seem that a constitutional grant of Home Rule authority would be stronger than a statutory grant; however, though Idaho allows certain Home Rule powers in its constitution, including the creation of Home Rule Charters, the scope of Idaho municipalities’ governing powers are more limited than in Indiana, where Home Rule was granted through statute. This is because Idaho’s constitution only allows for a strict construction of police powers, the powers that give cities the capacity to preserve public security, order, health, and justice. By contrast, Indiana’s law also allows municipalities some functional powers, which includes the city’s ability to choose the public goods and services it provides and at what levels.


Not only do states allow varying amounts of power depending on the particular area of the law, but they can also distinguish between the levels of local government. The powers delegated to counties may not be the same as those delegated to cities. Further, states such as Arizona, Missouri, and Delaware require a minimum population size before a municipality can create a Home Rule Charter. Thus, in some states, only certain cities are granted Home Rule authority while others are not. 


It is worth noting that, while in tension, Dillon’s Rule and Home Rule are not polar opposites; states can be considered a Dillon’s Rule State while still allowing some Home Rule authority, and vice versa. Further, while it may appear that Dillon’s Rule States have much less power available to them, this is not necessarily true. North Carolina, for example, is considered a Dillon’s Rule State, yet local governments there have the same powers, and in some cases, powers that are considered even “greater than those enjoyed by local governments in states [with Home Rule].” Thus, it important to keep in mind when assessing whether your state adheres predominantly to Dillon’s Rule or Home Rule, that it is just as significant to understand how that Rule is actually carried out in your state and locality. Further, regardless of whether your state is considered Home Rule or Dillon’s Rule, state government can still preempt local government at any time unless the local power is protected by the state’s constitution or federal laws.


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August 25, 2017

Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities

Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities

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Jacob Gersen

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