In Virginia, Fauquier County’s Board of Supervisors voted unanimously in December 2019 to adopt a resolution implying that the county would defy legislation passed by the state legislature regulating gun ownership if the legislation—in the opinion of these locally elected officials—does not comply with the United States Constitution. In doing so, Fauquier County’s Board designated itself as a “Constitutional County.”
The declaration is similar to resolutions adopted by more than two dozen Virginia counties that have dubbed themselves “Second Amendment Sanctuaries.” The position of Fauquier County’s Board of Supervisors bears similarities to the “constitutional sheriff” movement, which—at its core—argues that a sheriff holds ultimate law-enforcement authority in his (or in a handful of cases, her) county, outranking even federal and state officials within a county’s borders.
Of course, on the other side of the political spectrum, local governments throughout the United States have declared themselves “sanctuary cities”, vowing not to actively cooperate with federal immigration authorities when doing so would not be in the interest of their residents.
This raises important questions about federalism and intergovernmental relations in the United States, including: Can county governments in Virginia—or Sheriffs and counties in other states—legally go against state laws?
The short answer—in most states, including Virginia—is no. The slightly longer, traditional answer is that the powers of local governments depend on whether the state is considered a “Dillon Rule” state or a “Home Rule” state.
Dillon’s Rule. The Dillon Rule doctrine was formulated by John Forrest Dillon (1831-1914), a former Chief Justice of the Iowa Supreme Court. The crux of Dillon’s argument—which has consistently prevailed in court decisions—is that local governments are not sovereign entities: as the U.S. Constitution never mentions local governments, the power to determine the scope of authority of local governments in the respective states is among the powers “reserved to the States” under the 10th Amendment. Also reserved to the respective states is the right to define the relationship between each state and its local governments.
As such, the powers of local governments depend on the provisions in each state’s constitution. Some state constitutions—generally referred to as Home Rule states—permit local governments to exercise all authority not specifically prohibited by the state constitution. Unless state constitutions specifically assign broad “home rule” powers to local governments, however, Dillon’s Rule implies that local governments are limited to the powers expressly granted to them by their state. Thirty-nine states—including Virginia—either partially or fully apply Dillon’s Rule, while only 11 states do not subscribe to Dillon’s Rule at all (NACO 2010).
In the case of Virginia, Virginia’s State constitution states that “[t]he General Assembly shall provide by general law for the organization, government, powers, change of boundaries, consolidation, and dissolution of counties, cities, towns, and regional governments.” In line with the Constitution, the Code of Virginia, clearly defines the powers to the local level with regard to gun regulations, stating that “[n]o locality shall adopt or enforce any ordinance, resolution or motion … governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by [state] statute”. In other words, as creations of the state, Virginia counties cannot place their own interpretation of the U.S. Constitution or the state constitution on gun ownership (or on any other topic) above that of the state government.
Indeed, the argument about “second amendment sanctuaries” seems to be more of a political argument about a specific issue—gun rights—then about a specific view on intergovernmental powers and relations in a multi-level public sector. Fauquier County’s Board of Supervisors didn’t seem to object to the principle of the state preempting local power over gun regulations when the state’s position was more or less in line with its own political preferences. And despite trying to reserve the right for itself to be the final arbiter on the interpretation of the constitution, the Board does not argue that the state does not have the power to limit local government powers in itself: instead, the Fauquier County Board of Supervisors resolution explicitly acknowledges “that the United States Constitution and the Virginia Constitution are the highest law of the land”.
Political views on Dillon’s Rule. Although positions on state-versus-local power defy a simple political classification, as a general rule, those who view the public sector as a positive force tend to favor more extensive local government involvement, while those who want of smaller public sector favor a smaller role for local governments.
The National League of Cities (NLC), perhaps predictably, tends to favor Home Rule provisions over Dillon’s Rule, and is deeply concerned about state laws pre-empting powers and functions that it believes should fall within the purview of local governments. While acknowledging that uniformity of legislation, regulation, taxation and service delivery at the state level prevents individuals and firms from having to navigate a patchwork of regulation, the NLC views preemption of local powers as a problem, because it means a loss of local control for cities. “This loss of local control means that cities cannot curtail laws to fit their needs, creating economic implications, especially when fiscal authority is limited. Preemption can also have human rights implications when social policy affects groups like the LGBTQ community or working mothers. Therefore, when cities and state leagues are up against a bill with preemptive language, they will almost always oppose it.” (NLC 2017)
At the other end of the political spectrum, supporters of smaller government and lower taxes tend to favor state primacy in state-local relations. For instance, the American City County Exchange ACCE (2016)—a offshoot of the Koch-funded American Legislative Exchange Council, extensively funded by corporate donations—argues that “[w]ithin federalism, state sovereignty is the highest importance in contrast to the federal or local governments. Whether a local government is governed by Home Rule or the Dillon rule, the ultimate authority rests with the states.”
While it may be politically convenient to look at specific state-local arguments (such as the one over gun regulations) in isolation, it would not be prudent to consider any individual issue without considering the wider implications for the contestation of power between state and local governments in other areas. For instance, if one argues that counties should have a degree of regulatory power over gun ownership within their jurisdictions, wouldn’t it be reasonable to also argue that local governments should be allowed to decide which monuments should grace their parks and public places? After all, although local governments in Virginia are allowed to erect monuments in their parks and public spaces, Virginia state law–like state laws in many other Southern states—currently prohibits local governments from taking down or modifying monuments that memorialize the “War between the States”.
Conversely, if the state legislature—under new political leadership—were to change the law in order to empower local governments to do as they wish with the controversial war memorials, wouldn’t it be hypocritical if the legislature would not allow counties to make their own decisions on gun ownership rules at the same time?
In many ways, “Dillon’s Rule” doesn’t answer the key underlying policy question—which government level should be assigned specific powers and responsibilities—as Dillon’s Rule is simply the American legal expressions of the natural tendency of higher-level local governments around the world to politically and legally dominate lower-level governments.
Beyond Dillon’s Rule. The discussion whether local governments should be given the power to regulate (or limit the state’s ability to regulate) gun ownership and civil war monuments, is an entry point into a much wider discussion about the appropriate role of local governments (versus state and federal authority) on a whole host of issues: if local governments are generally entrusted with land use planning and regulations as well as with business permitting, shouldn’t local governments be allowed to regulate or restrict the sale of high-calorie foods and drinks within its jurisdictions? For instance, should a county be able to restrict fast food outlets from locating next to high schools? Should a county be able to prevent a gun shop from locating next to a child care facility?
How about local regulation of the sale of cigarettes or electronic cigarettes? Should local governments be allowed to provide municipal broadband services? Should local governments be allowed to prohibit discrimination on the basis of gender identity, even when the state doesn’t? Should local governments be allowed to regulate ride-sharing within their jurisdictions? Should local governments be allowed to regulate working conditions within the locality—for instance, by establishing a local minimum wage above the state minimum? Should a county be allowed to collect local income taxes? In many states, local government authority over decisions in these areas is pre-empted by state law.
As such, the pertinent question is not necessary whether state governments are able to use their political and legal power to preempt local governments in managing local affairs in wide-ranging policy areas—as they clearly are—but rather, to determine in which cases state legislatures are justified in pursuing state-wide collective actions, compared to other cases where states should exercise self-restraint and allow local governments to manage their affairs even if it goes against the political views of the state.
In other words—whether in Dillon Rule states or Home Rule states—is there a principle that could be applied in order to identify areas of public decision-making that should be in the realm of local governments vis-à-vis areas of public decision-making whether the state’s view should trump local authority?
Applying the principles of fiscal equivalence and subsidiarity. In deciding “what government level should do what”, many countries around the world—either implicitly or explicitly—follow a set of principles known as the “principle of fiscal equivalence” and the “subsidiarity principle”.
The principle of fiscal equivalence was formulated by an American economist, Mancur Olson (1969). The principle of fiscal equivalence suggests that in order to be efficient, the “benefits area” of a function or public service should coincide with the jurisdiction providing the public service. If the benefits area does not match the government jurisdiction, there is a likelihood that positive or negative externalities will result in collective decisions that are inefficient or inequitable.
Closely related to the principle of fiscal equivalence, and befitting American ideals of federalism and local self-government, the subsidiarity principle states that public sector functions should be performed by the level of government closest to the people that is able to perform the function efficiently.
In contrast to more politicized assessments of the vertical assignment of powers and functions, the subsidiarity principle provides a useful, neutral yardstick for assessing when local governments should be allowed to decide on a specific issue, or when the public interest is better served by having state-level uniformity in provision and regulation.
Typically, the subsidiarity principle is applied to different aspects of public service provision and public finance. For instance, when the principle is applied to specific service delivery functions, local governments are often deemed to be the lowest government level to efficiently provide public services, such as primary and secondary education. As a result, in most states—as well as in countries around the world—primary and secondary school are commonly run by elected local governments.
While local governments may be able to efficiently provide (or manage the provision of) primary and secondary education, many local governments do not necessarily have an incentive to efficiently fund primary and secondary education at an optimal or efficient level. As a result, in line with the subsidiarity principle being applied to the funding of specific public services (separately from their actual provision), state governments typically share the responsibility for funding primary and secondary education with their local governments by providing grants to local school districts in order to ensure that education is provided in at an efficient level and in an equitable manner.
Even though neither the U.S. Constitution nor any of the state constitutions make explicit mention of the subsidiarity principle, to a large extent, the existing assignment of powers and functions in the United States between the federal, state and local levels—as well as the division of responsibilities for funding public services—generally adhere to this principle.
The subsidiarity principle could equally be applied to regulatory functions such as those dealing with environmental pollution, but also the management of historical monuments or gun regulation, leading to questions such as: what is the lowest government level that can efficiently manage historical monuments? And what is the lowest government level that can efficiently regulate gun ownership?
Much like the construction or maintenance of a local street or community park, one would be hard-pressed to come up with a reason why local governments wouldn’t be the lowest level that could decide on the management of local historical monuments within their own jurisdiction. After all, the costs and benefits of the local monument are largely or fully confined to the local jurisdiction itself. As a result, the subsidiarity principle suggests that cities and counties should be allowed to manage parks, public spaces, and monuments on local land without interference from the state.
Applying the same standard to the question of gun regulation, however, would yield a different policy conclusion: there is a solid argument to be made (and a plethora of real-world evidence) that permissive gun regulations in one locality could have serious negative consequences for surrounding jurisdiction. As a result of this negative externality, according to the subsidiarity principle, individual local governments are not well-positioned to weigh the costs and benefits involved in performing this regulatory function. Given the ability of guns to easily cross jurisdictional boundaries, the subsidiarity principle suggests that gun regulation is an area of public policy best regulated by the state (or even federal) level.
What’s are the take-aways from this discussion? Federalism and self-government form the cornerstone of America’s multi-level democratic system. Although the U.S. Constitution defines the powers of the federal government vis-à-vis the states and protects the rights of states against excessive federal intrusion in state affairs, state constitutions generally provide much weaker protections for the rights and autonomy of local governments. As a result, state governments are often able to dominate the division of powers and responsibilities between state and local level, and often do so whenever politically expedient to them.
For at least the last 25 years, however, the state of federalism and local democracy in the United States has been taken for granted, and has not been viewed as a topic worthy of serious policy debate by many. Since the winding down of the non-partisan U.S Advisory Commission on Intergovernmental Relations in 1996, the amount of research on the topic has dwindled and no major reforms of local government structures or intergovernmental relations have taken place beyond the predictable ebb and flow of intergovernmental fiscal flows based on the political tides.
Americans—regardless whether they live in a blue state or a red state—deserve a well-functioning and efficient system of intergovernmental relations that gives a voice to all Americans. Their ability to make collective decisions in a democratic manner and as close as possible to home—whenever this can be done in an efficient and accountable manner—should not be subject to the direction of political winds in their state capital.
Note: Jamie Boex is a Senior Fellow at Duke University’s Center on International Development (DCID) and managing director of LPS Associates LLC. The opinions expressed in this blog are strictly those of the author.
 Code of Virginia 15.2: Counties, Cities and Towns. Subtitle II. Powers of Local Government. Chapter 9. General Powers of Local Governments. Article 1. Public Health and Safety; Nuisances. § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
 The Democratic Party Platform 2016 does not make any references to federalism, local governance or intergovernmental relations at all. The Republican Party Platform 2016 states that “our constitutional system — limited government, separation of powers, federalism, and the rights of the people — must be preserved uncompromised for future generations. … Federalism is a cornerstone of our constitutional system. Every violation of state sovereignty by federal officials is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans.” Beyond calling for the reduction and eventual elimination of federal conditional grants “so that state and local taxpayers can decide for themselves what is best for their own communities”, the Republican Platform does not make any specific reference to the division of powers and mandates between the state and local levels.
 When the benefits area for a function or public service is larger than the jurisdiction providing the public service, the local jurisdiction is likely to underprovide the service. (For instance, if local governments would be made responsible for building and funding highways (without state support), they would likely discount the preferences of drivers from outside their own jurisdiction). Similarly, when the benefits area is smaller than the jurisdiction providing the service, the government is also likely to provide a suboptimal level of services, as not all local taxpayer benefit from the service being provided.
 For instance, to the extent that high school graduates in rural communities tend to move away to urban areas for higher education and job opportunities, why would a rural local government spend their own scarce local resources in order to optimally fund local education, knowing that it would be funding its own brain drain?
 To the extent that students may move from a rural local jurisdiction and become taxpayers in another (urban) part within the same state, state governments face fewer negative spill-over effects than local governments. Furthermore, relative to local governments, state governments typically have bigger fiscal incentives to promote education and economic growth as states generally have more extensive and more progressive revenue sources vis-a-vis local governments (to recapture their investment in education).