In Age Of Trump, Philly Has Legal & Political Power To Resist: Here’s How

 

City Power: Urban Governance in a Global Age (Oxford University Press, 2016)

City Power: Urban Governance in a Global Age (Oxford University Press, 2016)

Editor’s Note: President-Elect Donald J. Trump and the Republican-led Congress has promised to cut off federal funding for Sanctuary Cities like Philadelphia, deport immigrants, ban Muslims, and make severe budgetary cuts to education, energy, public health, and environmental programs. All this could be disastrous for Philadelphia, which depends on federal and state funding, and immigrants for growth and stability. So what to do? Seeking guidance, Hidden City co-editor Nathaniel Popkin reached out to the author of a new book, City Power: Urban Governance in a Global Age (Oxford), Richard Schragger, a Professor of Law at the University of Virginia. In the book, Schragger argues that cities have much greater power to improve the lives of their citizens than legal and urban policy scholars have traditionally claimed. Here is their interview, conducted by email.

Nathaniel Popkin: You say in City Power that cities do have the power to protect their citizens from economic booms and busts, encourage development (though in a limited sense), and create regulations for public good, but what can they legally do to protect their residents from a belligerent state and federal governments, and, in this case, from a new President who has vowed to deport immigrants and cut off others from coming?

Richard Schragger: One of the arguments I make in City Power is that cities can—as a theoretical matter—engage in more social welfare regulation than conventional economic wisdom asserts, for example, by adopting minimum wage laws or regulations that protect workers and immigrants. But I also observe that states and the federal government can make it difficult for cities to do so, by preempting and overriding local legislation. Many states have preempted local minimum wage laws, for example. And the federal government can hurt cities by cutting off the flow of immigrants into the country. The legal weakness of cities is a structural aspect of our federal system. Hostile state legislators are the most immediate threat to the exercise of city power. But the U.S. Congress and the President can also adopt policies that override municipal law. Cities can resist in various ways—and they are doing so—in part because it can be difficult for state or federal officials to implement their desires on the ground. They often need the cooperation of local officials. So, although cities cannot adopt laws or regulations that contradict state or federal law, they can implement their own policies with an eye toward protecting their own citizens and they can litigate the reach of state and federal law with the hope of narrowing those laws’ effects. This is a form of resistance—if not outright defiance—that is also built into the federal system.

Independence Hall, source of Federalist compromise | King, Moses. Philadelphia and Notable Philadelphians. New York: Blanchard Press, Isaac H. Blanchard Co., 1901., p. 29 (collection of the Athenaeum of Philadelphia)

Independence Hall, source of Federalist compromise | King, Moses. Philadelphia and Notable Philadelphians. New York: Blanchard Press, Isaac H. Blanchard Co., 1901., p. 29 (collection of the Athenaeum of Philadelphia)

NP: Some cities, like Philadelphia, have already asserted their power as “Sanctuary Cities.” The new President has threatened to punish these places by withdrawing federal funds. Philadelphia’s response is to declare itself a “Fourth Amendment City.” So, first, how dependent are our large cities on federal government support; second, does this Fourth Amendment approach shield the city from Trump’s threats, and third, is there something to be gained by these cities—which now (unlike 20 years ago) have robust economies and are the source of most of our national economic innovation—banding together in a political alliance. What can they do together in a mode of resistance? What levers do they have?

RS: Generally, the federal government can condition federal aid on states or cities complying with federal directives. For example, Congress can condition the receipt of federal highway funds on states raising the drinking age. The Supreme Court, however, has imposed some outside limits on this kind of “bribery.” The national government cannot ask localities to do something otherwise unconstitutional. And they cannot withhold such a substantial sum that the congressional demand becomes coercive. Thus, in NFIB v. Sebelius, the Obamacare case, the Court held that Congress could not coerce states to expand their Medicaid programs by threatening states with the withdrawal of all Medicaid funding. The law is uncertain about what constitutes coercion, but cities could test it by challenging the threat in court.

Another important point is that President Trump cannot withhold funds on his own; he would need congressional action. Cities, therefore, need to take political action. They should begin lobbying congressional officials now, or better yet, develop a more sustained and powerful political alliance across cities. How much resistance they will be able to muster depends on the exercise of political power in Washington. And, as noted above, federal requirements may not make much difference on the ground. Local police departments can adopt policies that favor immigrants; cities can go slow on federal mandates, litigate them, or simply ignore them while claiming compliance. One could see a form of (quiet) massive resistance, by which local officials implement their own policies while paying lip service to national demands.

Anti-Trump protest march, November 10, 2016 | Photo: Lena Popkin

Anti-Trump protest march, November 10, 2016 | Photo: Lena Popkin

NP: Aside from protecting vulnerable residents from deportation, cities might have to consider ways of regulating the environment and implementing gun control, and even assuring things like freedom of religion in this coming climate. I think particularly of how much progress has been made in cleaning urban rivers like the Delaware and Schuylkill—what if environmental regulations are deeply slashed at the federal (and now state, since the GOP has a veto proof majority in the Pennsylvania State Senate), can a city do anything about it?

RS: Cities cannot stop the evisceration of federal environmental protections, but they can seek to resist the overturning of state and local laws. If federal funds for clean-up efforts dry-up, it will be difficult for cities to fill the gaps. That is because the chief environmental statutes and their enforcement has been a federal responsibility for some time. Again, cities are weak in this regard; there isn’t much they can do to prevent hostile state legislatures and Congress from deregulating—guns is just one example, the environment is another. What cities can do is access their political and economic networks. State legislators might not listen to city leaders, but they might listen to business and corporate leaders—those are the people who fund their campaigns. So cities have to make alliances with corporate interests and make sure that those interests are advocating for a clean, prosperous, safe, and fair city. City leaders have to create a national pro-city coalition that relies significantly on corporate interests.

NP: The Inquirer’s architecture critic, Inga Saffron, has posited that cities will now be “left to their own devices” to foster innovation, technology, etc., but what does this mean? Can institutions, say of Eds and Meds, do this without federal support? How might they respond?

RS: I have argued that cities should not be preoccupied with innovation but rather should concentrate on bringing basic services to their citizens. Economic innovation is not a product of municipal development policy. I also think cities have “been on their own” for some time. Of course, if the federal government cuts support for universities, hospitals, and research institutes, cities will feel the effects. Cities may see more difficulties as the burden of providing services gets pushed down from the federal government to the states and ultimately to the cities. Tax cuts at the federal level have always generated this problem.

NP: Thinking hopefully, how do you think cities can exploit potential investments in infrastructure? Does Trump really have any taste for infrastructure that matters—public transit, bridges,technology, or is he just concerned with highways and airports?

RS: It is hard to say what a Trump-style infrastructure program would look like and whether it could get through a Republican Congress. But I think most of these programs would go to highway building, and less to public transit. That being said, if Trump is smart, he would bring construction jobs to Ohio and other rustbelt cities and inner ring suburbs. Those investments might make a difference temporarily—and put some folks to work. Will they be smart investments or pork—it is hard to say.

About the author

Hidden City co-editor Nathaniel Popkin’s latest book is the novel Lion and Leopard (The Head and The Hand Press). He is also the author of Song of the City (Four Walls Eight Windows/Basic Books) and The Possible City (Camino Books). He is senior writer and script editor of the Emmy-winning documentary series “Philadelphia: The Great Experiment” and the fiction review editor of Cleaver Magazine. Popkin's literary criticism appears in the Wall Street Journal, Public Books, The Kenyon Review, and The Millions. He is writer-in-residence of the Athenaeum of Philadelphia.



10 Comments


  1. I am curious how this is about Philadelphia history. It is a one-sided political statement, and something I did not expect from this organization or website. I read and contribute to your site, and take your tours, for the historical value, notnthe political lecture. You need to keep above the politics!

  2. Robert, I’ve been reading this site for years, and political decisions (usually at the local and state level) are constantly discussed — what will and won’t be funded, what will or won’t be built or preserved, how leaders and citizens are shaping the Philadelphia of the future, et cetera.

    The idea the site is or should be “above politics” is nonsensical. Urban living as a means of organizing society is inherently political.

    As the editor explained, President Trump is proposing cutting federal funding for sanctuary cities, as well as severe budgetary cuts to education, energy, public health, and environmental programs — you can use your imagination to figure out how this will affect Philadelphia and why it is relevant to this site.

    • To see how politically slanted the entire article is merely look at both participants lumping of all immigrants into one group. Criminals and those who have worked and sacrificed to obey the law are not the same.

  3. At first glance I was a bit taken about by what appeared to be a one-sided political piece, but in reading it I understand better the valid concerns for how the new administration could negatively impact the city and the thinking behind developing a strategy to continue to flourish.

  4. You may want to read this and then update your piece:

    https://www.law.cornell.edu/uscode/text/8/1373

  5. The problem is ILLEGAL immigrants, not all immigrants. But you can tell this to radical leftists until you’re blue in the face and they will still tell you you’re xenophobic.

    I still just don’t get why so many people want to protect illegals — people who blatantly spit on our laws while reaping benefits — to the point that they have cities and institutions who wish to defy the incoming president for them. This has gotten out of hand.

    Whatever city tries to defy any federal order or law regarding harboring illegal aliens should have the responsible actors arrested for treason. Likewise churches who wish to do this should lose their tax-exempt status. Universities should lose federal funding as well.

    The new president needs to take back control of the government from liberal protesters, many of whom don’t know what real sacrifice or real work is like. Obama is just letting them run the streets and even encouraging them to do so.

    This country is out of control and it’s really sickening.

    • Dear Claire,

      Let me take a moment as the author of this article, the editor-in-chief of this news site, and a human being to reply to your comment. First, we appreciate that you took interest in this issue enough to read the detailed interview between me and Professor Schragger. On “illegals,” however, you are somewhat confused. No human being is “illegal,” they are just desperate and brave enough to risk everything for a better life. So called “illegal” immigrants contribute $11.64 billion in state and local taxes each year. 70-80 percent pay federal taxes. Compare that to Mr. Trump’s record. Many studies indicate that the cost to local and state governments in services to immigrants is minor. And, critically, throughout American history, immigrants–no matter how they’ve come here or why–are the economic engine of cities. Philadelphia would not be enjoying a resurgence without them. Their economic impact is actually far more immediate and consequential than that of us American-born folk: immigrants spend the cash they make immediately (just to live), recycling their pay into the economy.

      You seem to think that “illegal” immigrants are overtaking the U.S. when in fact the numbers have been declining for most of the last eight years. Don’t forget that President Obama has introduced legislation to create better systems for immigrants but the Republican Congress has failed to act.

      I’m not exactly sure how people who work ceaselessly to help their fellow human beings might be committing “treason.” Are they somehow deliberately undermining the security or sovereignty of the US? I’d like to see an once of evidence of this.

      Finally, you seem to think that “liberal protesters” have taken over control of the government. What in God’s name do you mean? Thousands and thousands of people have been marching peacefully (I have been one of them) because THEY LOVE THEIR COUNTRY. This is their First Amendment right, just as yours is to comment on an article. There is nothing out of control about it (the police’s job, which has been executed essentially without incident, is to protect the protesters’ right to protest in a safe and peaceful manner). Protesters are registering their heartfelt discomfort with many things, not the least a President-Elect who demonstrated utter disrespect for so many different kinds of people during the campaign. It’s funny though you smear the protestors: “many of whom don’t know what real sacrifice or real work is.” I say it’s funny rather than an expression of abysmal ignorance (and based on what, exactly?) since those who work the hardest and sacrifice the most in this country are those who come here with great hope of becoming American, the eternal hope that makes this country in fact great.

      • Thank you for your beautiful and informed reply. My own personal experiences confirm all that you say. For example, I can remember a contractor who did some work with immigrant workers for my home. This was about 10 years ago, but I still remember thinking that I had never seem harder working or more courteous people. They even asked permission before eating their brief lunch. What was most amazing was their cheerful attitude towards the hard work.

        The Canadian government has been wise in their far more open and progressive policy towards immigration. It is not too late for the US to learn from this.

      • Thank you for posting such a smart, level-headed reply, and thank you for conducting this interview. It’s important that we, as a society, stop beating up on the bogeyman of “illegals.” Prioritizing rational conclusions over raw emotion would do our entire country a lot of good.

      • So instead of acting to change the law you don’t like through the goverrnmental process, your answer is to provide financial rewards to those who choose to break the law.

        You seem unaware that if these criminals and those who hire them were not sheltered, wages would rise for long term residents and those who have sacrificed to immigrate legally. If I was part of the publicity left I would call your position racist since it penalizes most the inner city minority population who don’t see their wages and opportunities increase because of illegal workers and those who illegally hire them

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