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.
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.
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.