Conditional Authority: When Centers Restrain Delegation

Just another day in the life of a state that only appears Weberian.

Attention Conservation Notice: Notes on making U.S. state and political politics legible to international-relations scholars.

Enough about the passing political scene. Let’s talk about something both less, and more, urgent: how do governments arrange their relations with sub- and super-ordinate authority?

Some quick background. There are many reasons to suspect that different arrangements of governance hierarchies offer different advantages and disadvantages. Centralized governments, for instance, can mobilize resources behind a single goal; consider that the North Korean government has been able to develop a nuclear weapons program despite having an economy on par with Kenya’s (by per-capita GDP) or Bosnia (by overall GDP). On the other hand, decentralized governments can pursue a wider variety of goals more efficiently. Splitting a unitary government into many can allow for different communities to have different policy outcomes or credibly commit that one community will not dominate another. Accordingly, real-world governance hierarchies appear in many different forms, from empires (which treat different peripheries differently, allow centers to act autonomously, and hold that centers can ‘invest’ subordinate authorities) to confederacies (in which centers are bound and invested by their subordinates).

These patterns combine and re-combine at many different “levels of analysis”, from internal office organizations (and re-organizations) to different accounts of how American primacy shapes global and regional orders. The rhetorics around such orders often obscure this; witness how many people still believe that ‘anarchy’ distinguishes international politics from domestic political orders, for instance. (What is more anarchic: intra-EU relations or intra-Somalia relations?) Similarly, contestations of hierarchy can obscure (or reveal) true hierarchical rankings, while great powers often have reason to behave as if they were just ordinary states. Accordingly, even though these considerations are a part of ‘international’ life, they remain obscured.

Yet the dynamics of center-periphery relations also remain occluded in the fora in which we should observe them readily. That includes not just relations we normally consider ‘domestic’, as between the federal government and the constituent members of the American Union, but also those we call ‘municipal’, as between a state government and the various local governments within its remit. The arguments for having a state government sponsor (typically many) local governments are manifold, but usually rest on some notion of popular sovereignty, the normative desire to allow distinct communities distinctive policies, a crassly reactionary desire to prevent redistributive or progressive politics, plain rent-seeking, and stealth arguments against democracy (surely one reason to divide school boards from ‘normal’ politics is to prevent Those People from winning elections, whoever Those People may be).

Yet a puzzling phenomenon recurs. Authorities delegated downward, from center to periphery, within U.S. states seems much more contingent than standard static analyses suggests. Why do states grant prerogatives they don’t want local governments to enjoy?

The (Democratic) mayor of Phoenix, Arizona, discusses this phenomenon of state “pre-emption” in a Slate interview. One example:

Climate change is affecting Phoenix, Arizona, as much as any other big city in the United States of America right now. Not in the future. Energy benchmarking is a very simple public policy that said for buildings, office buildings above a certain size, you have to disclose information as it relates to energy consumption, water usage, solar, whatever it may be, so that tenants can vote with their feet as to what building they want to be in. At the beginning of the conversation, the state Legislature passed a law banning the city—all cities including the city of Phoenix—from even a market-based policy like energy benchmarking.

Another Slate article dealt with the pre-emption phenomenon, this time pegged to a Scott Walker decision to pre-empt a local ordinance requiring sick leave:

Milwaukee’s ordinance, approved in a 2008 referendum by 69 percent of voters, would have required large businesses to offer full-time workers nine paid sick days a year and businesses with fewer than 10 employees to offer five sick days a year. Ensnared by legal challenges, the law had never taken effect but had been ruled constitutional by the state’s 4th District Court of Appeals in March 2011. Two months later, Bill 23 arrived on Walker’s desk, and paid sick leave in Wisconsin was dead.

Given that preemption is costly (floor time in a legislature is valuable) and contradicts the popular will (cities, after all, are democracies too!), why engage in pre-emption post hoc or ex ante?
The first explanation that comes to mind is that state legislatures are confident that they will always be able to pre-empt or otherwise restrict the particulars of any grant of power they choose. In other words, legislatures can make a blanket delegation of home rule to localities and then let the localities search for the limit. This would work if the legislature itself doesn’t exactly know what the limit is — perhaps there is some benefit to allowing pinko towns to engage in some green regulation while suburbanites drive Suburbans, but there is a point beyond which some constituency important to the legislature but not represented in the legislature would be harmed. If there is uncertainty about that point, then letting the constituency serve as a ‘fire alarm’ allows the legislature to avoid a costly floor fight before the issue is ‘ripe’.
A second argument could be that legislatures who represent a different coalition from those that govern activist localities derive active utility from preemption. In this case, ex ante regulation would take away some benefit the legislators will derive from showing off their ability to preempt those pinko townies. (Think, for instance, of how the ‘rural consciousness’ Kathy Cramer identifies in The Politics of Resentment could play out in this scenario. A red county legislator would need the ability to symbolically smack down the cities’ liberalism in order to demonstrate such solidarity.)
A third, and more justifiable, argument, could derive from efficiency: perhaps too many legislative initiatives across the state could wreak havoc on contracting and licensing, thereby reducing output, fairness, etc. In this case, the ‘fire alarm’ argument would still work–constituencies would monitor for breaches of delegation:

In their defense, pro-business conservatives argue that pre-emption has kept at bay an incomprehensibly complex patchwork of local regulations. “In terms of the local control issues, when you’re dealing with market-related issues, such as the ban on the use of plastic or Styrofoam or minimum wage issues, you create conflict within the marketplace,” explained Andre Cushing III, the assistant majority leader of the Maine Senate and a member of ALEC’s board of lawmakers. “It creates an ability for people to violate laws unintentionally, because there’s no clear picture.”

Although I find this argument  minimally compelling in the abstract, I find it unpersuasive in explaining contemporary pre-emption. If uniformity is such an important goal, why not simply require it from the beginning? And why not allow local communities to deal with the costs of enforcement? (Note that there seems to be little done to establish that there are substantial negative externalities arising from these questions.)
I am going through these examples not because I want to crown a winner but because I want to point out that inter-governmental relations within even superficially ‘settled’ regimes, like American states, are more contentious and uncertain than many areas of international relations. Hierarchy is not necessarily a zone of certainty; the dynamics of an uncertain hierarch can pose more political risk than a mutually agreed equilibrium. I don’t want to take this too far: the fact that both Phoenix and the Arizona legislature agree that the legislature is ‘superior’ (or more ‘fundamental’) than Phoenix provides a clear hierarchical ordering. But this is not essentially dissimilar from the sorts of tensions that used to be far more commonplace when international relations were more formally constituted as governing (e.g. imperialism, trusteeship, and occupation) and resonates even with modes of proposing or contesting the idea that sovereignty is or should be made more permeable (R2P etc).

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