Bloomberg’s Legal Legacy – Closing Remarks by Richard Briffault

December 4, 2012

            Thank you very much. It is a privilege to be here to tonight to participate in this program reflecting on the Bloomberg Administration’s Legal Legacy. The last eleven years have been critical to the history of New York City, and as the panels last week and tonight have demonstrated legal tools and legal analysis have played key roles in those developments. I am particularly pleased that I have been asked to provide “closing remarks” to conclude a conference that began with the “opening remarks” of New York City’s Corporation Counsel Michael Cardozo. The longest serving Corporation Counsel in the City’s history, Michael Cardozo has brought what was already the greatest municipal law office in the United States to new heights of professionalism and distinction. I am greatly honored to be paired with him in this symposium.

The very distinguished group of panelists and moderators we heard from last week and tonight have addressed some of the specific policy area highlights of the Bloomberg years. I would like step back and look at the overall position of the City in our legal structure and, in particular, to address the Bloomberg Administration’s legacy for the City’s legal ability to govern itself, that is, to enjoy home rule. As we all know, the United States consists of three levels of government – federal, state, and local – but the United States Constitution recognizes only two of them, the federal government and the states.  Cities enjoy no federal constitutional status – constitutionally, they are mere arms of the states – “political subdivisions . . . created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.” As a matter of federal constitutional law, the states have plenary authority to alter, abolish or destroy their cities; to strip them of powers, and to expand, contract, or dissolve their territories. Constitutionally, cities are little more than creatures of their states.[i]

As a matter of state constitutional law, the states have traditionally enjoyed plenary power over their local governments and have frequently intervened directly into local affairs. Most states, however, have amended their state constitutions to provide their cities with a measure of autonomy – home rule. In New York, the home rule provision dates back to 1894 and has been amended several times since then, most recently in 1963. Cities are given some power to govern themselves, to adopt their own charters, enact their laws, and pursue their own initiatives without having to ask for permission from the state. They are also given a measure of protection from state interference with local “property, affairs, or government.”  Under home rule, cities have a lot of autonomy to address local needs and concerns – more than is sometimes recognized.

But home rule in New York has been a fragile and uncertain thing. The City’s powers over such core concerns as taxation, education, and criminal justice are tightly limited. Even in areas where the City can act, the State typically has the power to displace City rules with state laws. Because this City in particular looms so large in the life of the state, with much of the legislature and an occasional governor hailing from the City and all governors having a political concern with the City, Albany has long been actively engaged in governing the City. The State can and does impose costly obligations, limits City powers and takes over policy arenas.

Preemption is a particular problem. Although the City may have in principle relatively broad powers to initiate new laws, the state has the power to preempt local regulation with its own laws on the same subject. As there are few subjects the state has not addressed, state laws can operate as an obstacle to City policy-making even if state law does not expressly bar the local one, or the local law addresses a City-specific feature of a problem that the State has addressed more generally. The judicial doctrine of “occupation of the field” can use state laws to block City initiatives while the doctrine of “state concern” has often operated to ratify state legislative interventions into local matters.

The Bloomberg Administration has dealt with the questions of home rule and City-State relations in several important ways. First, the health policy initiatives discussed last week and the land use practices and building code revisions analyzed tonight illustrate the City’s ability to make the most of the powers home rule provides. They show that vigorous and inventive local self-government is possible. They both demonstrate the scope of local home rule and, by showing what can be accomplished, make the case for home rule even stronger. Certainly, many of the health policy initiatives have been imitated by other cities, and the greening of the building code is likely to affect practices elsewhere as well. Like a muscle that grows stronger the more it is used, the best way to develop home rule may be for a City to undertake creative and successful initiatives, as the Administration has done.

Second, the Bloomberg Administration’s education policies demonstrate that home rule can be advanced in practice through intensive political action at the state level which overcomes the legal limitations on home rule in theory. Under the state constitution, education is a state concern. The Bloomberg administration could not change school governance at the City level. It had to go to Albany for that. But through the state legislative and political processes it obtained a significant degree of local education policy-making authority. In other words, even when the constitution does not provide for home rule as a matter of law, it can be secured as a matter of politics, although that power may need to be repeatedly defended and protected.

Third, other policy arenas – where the Mayor’s initiatives didn’t happen and so aren’t on display tonight – illustrate the limitations on home rule and the continuing power of the State over City matters. I am thinking particularly of the Mayor’s congestion pricing program, which required state legislation and died when the Assembly refused to go along with it. But there are other matters, as well.

But what I really wanted to focus on in my remaining time is a particularly striking feature of the Bloomberg Administration’s approach to home rule (although it is one shared with the Giuliani Administration) which is the attempt to blunt home rule by invoking state law, and on at least one occasion actually securing a state law, to limit the scope of the City’s legal authority. For these purposes, I hate to say it, I have to discuss a few court decisions with you. I apologize for inflicting case law on you at such a late hour but I am a law professor and it is in my nature.

In 2003, the Administration persuaded the state courts to invalidate a local law that would have required the New York City Health & Hospitals Corporation to use “peace officers” – a technical term for a category of public employees — as security guards, rather than hire private security staff, as the Corporation sought to do. The Administration successfully argued that the local law, which had been enacted over Mayor Giuliani’s veto, was preempted by the state law dealing with the Health & Hospitals Corporation.[ii] The following year, in the aptly captioned Mayor of the City of New York v. Council of the City of New York, the Administration successfully argued that a local law, this time passed over Mayor Bloomberg’s veto, that would have prohibited the City from doing business with financial institutions that engage in predatory lending was preempted by a combination of federal and state laws.[iii]

In 2006, in Council of the City of New York v. Mayor of the City of New York the Administration persuaded the Court of Appeals to strike down the City’s Equal Benefits Law, again on preemption grounds. The Equal Benefits Law would have prohibited City agencies from contracting with firms that fail to provide to their employees’ domestic partners benefits equal to those provided to spouses. The law was passed over the Mayor’s veto. The Mayor announced he would refuse to comply with it. The Council brought an Article 78 proceeding to compel him to comply. The Court of Appeals, by a 4-3 vote, ultimately agreed with the Mayor’s contention that the law was preempted in part by federal law and more generally by the state’s General Municipal Law.[iv]

In 2007, the Mayor was again before the Court of Appeals relying on state law to preempt a local initiative that had been passed over his veto. In this Mayor of the City of New York v. Council of the City of New York case the Mayor claimed that the local laws giving the New York City fire department’s fire alarm dispatchers and emergency medical technicians the status of uniformed fire service members for collective bargaining purposes were preempted by the state’s Taylor Law. This time the Court of Appeals disagreed and voted 6-1 that the local laws fell within the area of local discretion and were not preempted.[v]

In these cases, the Bloomberg Administration sought to use preexisting state law to preempt new City initiatives. But in 2011 and 2012, the Bloomberg Administration went one step further and went to Albany to obtain new state legislation to substantially revamp the regulation of NYC taxicabs. This included the issuance of 2000 new medallions and thousands of new HAIL licenses for street hails by nonmedallion livery vehicles outside midtown and downtown Manhattan; provision of new wheelchair accessible vehicles; and, of course, the imposition of substantial fees.  From 1937 onwards, NYC’s taxicabs had been regulated by the City, and the Mayor initially sought to get his program implemented by City legislation. But when the Mayor encountered substantial City Council resistance, he outflanked his opposition by going to Albany, getting the legislature to declare NYC taxi services to be a matter of state concern, and, in effect, having the State tell the City how to regulate its taxicab affairs – although the State was essentially telling the City to do what the Mayor wanted. In an unusual decision this past August, Justice Engoron of state supreme court New York County, struck down the state law as a violation of New York City’s home rule. As he pointed out, the state law did more to alter the allocation of power over taxicabs within New York City’s government than it did to advance any distinctive state concern with the availability of taxi service.[vi]

In discussing these cases, I do not intend to question either the policy goals underlying or the legal arguments undergirding the Mayor’s position in any of these cases. To be sure, some of these cases involved significant urban policy initiatives like predatory lending and gay rights that had been taken up by other cities in addition to New York. As we now know, the problem of predatory lending is a serious one affecting the health and stability of many local communities. When federal and state regulators failed to address the problem effectively, a number of local governments – not just New York — tried, albeit drawing the objection that financial services regulation is not a local matter. Equal treatment for same-sex couples has also been an important area of local innovation, with many urban centers more concerned about the issue than their states. Before the recent advance of marriage equality laws at the state level, cities were the leaders in this area. As cities cannot regulate marriage directly, the City tried to use the contracting power to promote equal rights. On the other hand, the specific City Council law was in tension with the traditional rules setting criteria for the competitive biddingof City contracts.  The other disputes I have discussed dealt with more New York City-specific issues, particularly the nitty-gritty of control of the municipal work force; the place of privatization and collective bargaining in the City’s labor relations; and the taxi industry.

Legally, the Administration frequently had reasonable legal arguments, and was able to invoke state court precedents supporting its legal positions. Indeed, it won three of the four fully litigated disputes I discussed and may yet win the Taxicab Service Association case.

Still, as a teacher of local government law, and a believer in the importance of home rule, I find it a little unsettling when New York City’s Mayor argues before the state courts that a state law preempts a City initiative. It is even more unsettling when, in order to win a policy dispute, the Mayor asks the state to turn what had long been a field of City regulation into a matter of state concern and a subject for state legislative determination.  Once a state has taken over a subject, it may be hard for the City – and for future Mayors – to get it back. Perhaps naively, I think the Mayor ought to be fighting to expand City power,  not seeking laws and court rulings that would limit it.

So, what does this tell us about home rule and the Bloomberg Administration’s legal legacy? First, that the vertical issue of conflict between two levels of government is often tightly intertwined with the horizontal issue of conflict between different branches in the same level of government. Some of the principal home rule litigations of the Bloomberg Era have not been City v. State; they have been Mayor vs Council. Home rule disputes can be as much about who rules at home, as about home rule itself.  These cases, the state taxi legislation, and the battle over mayoral control of schools remind us that Mayor and City are not synonymous – that there are multiple contenders for the right to speak, regulate, and legislate for the City, just as there are multiple arenas – city council, state legislature, state and sometimes federal courts – in which these battles are carried out.  So, too, as the taxi legislation shows us, state legislation aggressively entering a previously local field may actually have been pushed by local actors to promote a local agenda.

Second, they are a reminder, as if this crowd ever needed such a reminder, of the complexity of the interconnection of law, policy, and politics. A central focus of the substantive panels that have been the heart of this symposium has been on the role of legal tools and legal analysis in shaping the City’s policies over the last 11 years. My point in raising these cases has been to emphasize the need to think about how politics and policy can shape the law. The conflicts between the Mayor and the Council – rooted in policy disagreements, political conflicts, divergent constituencies, and different visions of the City – have led to state litigation and legislation which could create legal precedents that will structure and perhaps constrain the legal autonomy of the City in the future. Court decisions reading state laws broadly to occupy a field and bar local regulation or that treat local additions to or departures from state law as in conflict with local measures become precedents for future challenges to City laws which can wind up curbing future Mayors. There may be a conflict here between the immediate political and policy needs of any mayoral administration, with a willingness to use whatever legal tools are at hand, including state preemption, to advance its goals, and the long-term interest of the City in being able to chart its own destiny with less interference from the state.

Third and finally, these issues make it difficult to come up with an assessment of the Bloomberg Administration’s legacy for home rule, and not simply because the Administration has almost 13 months to go. As the panels last week and tonight have indicated, the Administration has successfully pursued a wide range of important initiatives that demonstrate just how much a city – or at least this City – can accomplish in areas like public safety, public health, education, land use and the environment. To that extent the City is the poster child for the possibilities of home rule. So, too, the Mayor’s successful maneuvers in obtaining state legislation giving him control over the City’s schools demonstrate that local interests can be advanced politically as well as legally – although the congestion pricing saga reminds of the consequences of dependence on Albany for legislative authority. The more mundane disputes I have raised concerning control over the terms of employment of and collective bargaining with the municipal workforce, terms for dealing with government contractors, the issuance of taxi medallions and street hail licenses – are unlikely to loom large when the history of the Bloomberg Administration is written.  Still, these cases may provide precedents and legal theories for those who would argue against City autonomy in the future. As a result, the Bloomberg Administration’s legal legacy for future City initiatives and state actions taking power away from the City is mixed and uncertain, and may not be known for years.

The Chinese Communist leader Chou En-lai responded when asked to assess the significance of the French Revolution, it’s too soon to tell.  So, too, for the legal legacy of the Bloomberg Administration – it’s too soon to tell.

Thank you very much, and good evening.

[i] Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).

[ii] 303 A.D.2d 69 (1st Dep’t 2003), app. withdrawn & discontinued, 1 N.Y.3d 539 (2003).

[iii] 780 N.Y.S.2d 266 (Sup. Ct. N.Y. Co. 2004).

[iv] 6 N.Y.3d 380 (2006)

[v] 9 N.Y.3d 23 (2007).

[vi] Taxicab Service Association v. State (Sup Ct. N.Y. Co., Aug. 17, 2012) (Index No. 102553-2012).