The Home Rule provision of the state Constitution “is a subject ripe
for consideration and debate,” concludes the New York State Bar Association in
a report that describes how the autonomy of local governments has been eroded
by state laws and court decisions.
Constitutional Home Rule, in theory, grants local governments the
authority to decide how best to govern their communities in matters of local
concern. It allows them to enact local laws without the interference from the
However, over the years, those protections have been so eroded that the
state Legislature has assumed the power to regulate such local concerns as taxi
cabs in New York City and the salary of the Allegany County district attorney,
to offer just two examples of state micromanagement of local governments.
“New York’s constitutional and statutory provisions regarding home rule
are extensive, evincing a clear intent to protect local autonomy. However, the
balance between State and local powers has tipped away from the preservation of
local authority toward a presumption of state concern,” the report concludes.
The report, approved by the Association’s House of Delegates on April
2, calls for additional study, possibly by a preparatory commission for a state
constitutional convention. New York voters will decide in 2017 whether to
authorize a convention.
“We expect our Home Rule report will enhance public understanding of
the relationship between the state and local governments. It also offers a
valuable resource for further study,” said State Bar President David P.
The report—meant to be descriptive rather than prescriptive—was drafted
by the Association’s Committee on the New York State Constitution, which was
created by Miranda in 2015 and is chaired by Henry M. Greenberg of Albany
The report recognizes the vital governance role played by local
governments, which are responsible for drinking water, social services,
sewerage, zoning, schools, roads, parks, police, courts, jails, trash disposal
— and more.
“In New York State, local government has a greater impact on the
day-to-day lives of the public than any tier of government,” it says. “Without
local government, public services often taken for granted would not be
In 1963, New York voters amended the Home Rule provision of the state
Constitution to expand and secure the powers of local governments. Since then,
those powers have been limited by judicial decisions and legislative mandates.
The Legislature can order local governments to perform certain
functions in a wide range of fields, including health care, education and
social services. These mandates often require localities, rather than the
state, to bear the costs. “New York imposes
more unfunded mandates than any state,” according to the report.
Numerous states have provisions in their constitutions prohibiting or
limiting unfunded mandates. They
include: California, Florida, Hawaii, Louisiana, Michigan, Missouri, New
Hampshire, New Jersey, New Mexico and Tennessee.
impacting Home Rule
Constitutional Home Rule in New York has been restricted by judicial
development of two legal doctrines: state preemption and state concern.
State preemption doctrine
Under this doctrine, if a local government enacts a law that directly
conflicts with a state law, the local law is unenforceable. “Even in the
absence of an outright conflict, a local law is preempted if the state
Legislature has evidenced its intent to occupy the field.” Such “field
preemption may be express or implied.”
For example, applying this doctrine, courts have ruled that localities
cannot: set operating hours for taverns and bars; raise the minimum wage above
the state minimum wage; or enact local zoning ordinances to restrict
construction of power plants.
Implied preemption, the report says, “is a significant constraint on
local authority... . It has also generated considerable litigation, with often
unpredictable results, creating confusion and uncertainty for local
State Concern Doctrine
Since a 1929 decision, the state Court of Appeals has expansively
interpreted the “state concern” doctrine.
Citing “state concerns,” courts have upheld acts of the Legislature
that: regulate waste disposal in Nassau
and Suffolk counties and municipal sewers in Buffalo; require certain counties
to pay district attorneys the same salary as county judges; and impose bidding
requirements for local government contracts.
In decisions affecting New York City, courts have ruled the Legislature
has the power to: oversee rent controlled apartments; exempt firefighters from
the city’s residency requirement; repeal the city’s income tax on commuters;
and regulate taxi cabs, to name a few examples.
“The State concern doctrine has narrowed the Home Rule clause’s
guarantee of a modicum of local legislative autonomy. Today, the line between
matters of State concern and matters of local concern is increasingly
indistinct,” the report observes. “Few constraints exist on the Legislature’s
ability to interfere in local affairs by special law.”
Despite extensive constitutional and statutory provisions protecting
home rule, the balance has tipped toward state government, the report found.
Without taking sides, it cites commentators who disparage the
constitutional Home Rule protection as a “ghost,” “merely a pleasant myth” and
“a near total failure.” On the other hand, decades of court decisions support
the need for a dominant state, which represents all, over the power of local
governments, which represent only a portion of the state.
“Constitutional Home Rule is a subject ripe for consideration and
debate for all concerned,” the report concludes. “There is a need to weigh the
benefits and costs of amendments to Article IX that would restore local
autonomy through greater certainty and clarity.”
It suggests a proposed Constitutional Convention preparatory commission
devote “significant time and attention” to the topic.
The report on Constitutional Home Rule is available at www.nysba.org/homerulereport.
The 74,000-member New York State Bar Association is the largest
voluntary state bar association in the nation. It was founded in 1876.
Contact: Lise Bang-Jensen
Director, Media Services and Public Affairs