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Local Government
Wayne State University Law School
Mogk, John E.

Local Government – Mogk
Winter 2012
 
 
Initial Questions
What is the basis for the power?
§  Explicit authorization
§  Delegation through implied as incident to an explicit grant of power
§  Delegation pursuant to broad state transfer of general regulatory powers to specific local government units – general welfare enabling power
§  Delegation pursuant to state grant of home rule status to the local government
·         Constitutionally derived
·         Statutorily derived
·         Local unit creates a charter which details their powers and allocates functions
Is it a proper exercise of that power? 
Is there any limitation on the power?
Does it infringe on any individual rights?
Is it preempted by any state or federal legislation? 
 
INTRODUCTION (1, 9-18, 21-27, 47-83)
·         John Stuart Mill, Considerations on Representative Government (9)
o   2 parts
§  What should be their duties
§  Whether they should have full authority within the sphere of those duties or should be liable to any, and what, interference on the part of the central government
o   Some duties classified as local also have a national connotation
o   Administration of justice
§  Universal concern – should be uniformly regulated
§  How far should local governments be allowed to go free from state intervention
o   Local reps have lower knowledge
o   Local reps are accountable to inferior public opinion
§  Authority depends on the will of the public
§  Knowledge is on local issues
o   Should centralize the localities
§  Communication
§  Knowledge
o   States should intervene if a local majority attempts to oppress a minority
·         Hannah Arendt, On Revolution (12)
o   Jefferson
§  Only reps of the people had the opportunity to express, discuss, and decide (activities of freedom)
§  Failure to incorporate the township in the constitution
o   Corruption and perversion occur when private interests invade the public domain
o   Corruption of the person is only possible where government granted them a share of public power and taught them how to manipulate it
o   The only remedies lie in the public realm – being visible
o   Local governments are what makes this country a republic
·         Nancy Rosenblum, Membership and Morals (14)
o   Local governments are “frequently created and defended to insulate one set of local people or interest from the regulatory authority and population of another local government”
o   One created municipalities are protected against reorganization
o   Zoning
o   Fiscal autonomy
o   Cities don’t want to be attractive places for poor people to live
o   Mount Laurel
§  Desire had to be balanced against the countervailing interest of nonresidents
§  Violated state constitutional due process and equal protection
·         Failure to make possible a variety and choice of housing
§  Mount Laurel and other communities would have to do their fair share in meeting the region’s low and moderate income housing needs
o   Prevailing view is to let the community decide
·         James Madison, The Federalist #10 (16)
o   2 methods to cure mischiefs of the faction
§  Removing its causes
·         Destroying liberty which is essential to its existence
·         Giving every citizen the same opinions, passions, and interests
·         (neither are feasible)
§  Controlling its effects
o   2 differences between democracy and republic
§  Delegation of government
§  Extension of government can be greater in a republic
o   Republic’s delegation cannot be too few or too many – won’t work
§  Must be proportionally related
·         Charles Tiebout, A Pure Theory of Local Expenditures (21)
o   People are mobile and will move to localities that have the services they most desire (vote with their feet)
§  assumptions
·         No concern for income – poor people cannot move
·         People are aware of the service differences
·         People do not have employment obligations
·         There are a large number of communities to choose from
·         There aren’t any external eco factors
·         That city’s will work to attain this status
o   Won’t attempt to over or under populate
·         Mogk
o   Economic factors are most important when people are choosing a place to live
·         John R. Logan & Harvey L. Molotch, Urban Fortunes (24)
o   Use values reflect the way a current occupier uses his land
§  Types of Use Values
·         The daily round
o   Neighborhoods provide a safe place for s

re general purpose government.  Unincorporated governments only provide the basic needs.
·         School Districts
o   Most common is the school district.  Do not necessarily have the same geographic boundaries as the local governments.  Generally have elected boards, but when they are set up the state executives whether they are appointed or elected.
·         Other Special Districts
o   Single Purpose entities
§  Sewer and water, conservation, irrigation, reclamation of lands that are contaminated
o   Public Authorities
§  May operate within an existing district to perform a special function.  Ex. Michigan state housing development authority
·         The Tenth Amendment and the Commerce Clause
o   Garcia v. San Antonio Metropolitan Transit Authority (53)
§  Prerequisites for governmental immunity
·         4 conditions
o   Federal statute at issue must regulate the States as States
o   The statute must address matters that are indisputably attributes of state sovereignty
o   State compliance with the federal obligation must directly impair the states’ ability to structure integral operations in areas of traditional governmental functions
o   The relation of state and federal interests must not be such that the nature of the federal interest justifies state submission 
§  This case involves the 3rd requirement
§  State tax immunity – only to the ordinary and strictly governmental instrumentalities of state governments and not to instrumentalities used by the state in the carrying on of an ordinary private business
§  Distinction between governmental and proprietary functions
§  Can’t make distinction on “integral” or “traditional” governmental functions
§  No limit to Congress’ power under the Commerce Clause
§  Laws that unduly burden the states will not be promulgated