Friday, April 1, 2016

Why the NCGA invalidated Charlotte's "Bathroom Bill"

The answer to that question is pretty short.  It’s “because they could”.

This is not a column about the merits of the General Assembly’s action last week in passing H2 in special session to invalidate Charlotte’s so-called “Bathroom Ordinance”.  Neither is it a column about the merits of the ordinance itself to provide protected status to the LGBT community.  The issues raised in that debate are highly charged on both sides with little chance of opinions being swayed either way.

However, these hot button issues do provide an opportunity to delve into a topic otherwise likely to seem totally boring.  That would be the theory behind the powers granted to local government.  It's that theory which lies at the heart of “why” the NCGA was able to take the action it did.

When it comes to local government, North Carolina - like most states - operates under some variation of what’s called “The Dillon Rule”.  The Dillon Rule basically says local government (counties and municipalities) only have powers to engage in self-government in areas approved by the State.  Debate around this subject goes all the way back to the founding of the country where the U.S. Constitution specifically grants the States all authority not reserved to the Federal Government.  The U.S. Constitution says little about the formation of local government at the county or municipal level.

During the post Civil War period in two cases out of Iowa, Judge John F Dillon affirmed the predominant interpretation at the time regarding the narrow scope of local authority or that all local authority should be explicitly granted from the State.  These cases were subsequently upheld by the U.S. Supreme Court.  Thus, “The Dillon’s Rule” was born.  Today, most states interpret the scope of local authority through that lens.

Basically, it boils down to this.  If the state has not fairly explicitly granted local government the authority to make certain decisions, then the authority to make those decisions rests with the state and not the localities.

That would seem to be a clear line, but in practice it can get fairly confusing.

Local governments can be granted “home rule” authority in broad areas – meaning the authority to make ordinances that impact just the home area of the local government.  That’s actually the case here in North Carolina where local government can take action on many things.

However, municipalities will also often stretch the limits of the areas where they have been granted authority.  These ordinances will often stay in place until they are challenged in court or someone in the legislature is convinced to “clarify” that a locality actually didn't have the authority to make an ordinance it had enacted.

Recent local examples of these supposed overreaches include Davidson’s 2013 repeal of its Adequate Public Facilities Ordinance (APFO) when a similar ordinance in Cabarrus County was shot down by the courts due to an a lack of “enabling” legislation from the state.  In a second example, last year Davidson faced a legal challenge from developers to its mandatory affordable housing ordinance based on a claimed lack of enabling legislation.  The town settled that one, but if it had gone to trial it's very possible the courts would have sided with the developers and invalidated some or all of the town's affordable housing policy.

A third example of recent state “clarification” of municipal authority occurred last year when a bill originally sponsored by former Charlotte Mayor Dan Clodfelter finally passed the legislature. Clodfelter sponsored the bill when he was in the NC Senate years earlier.  That bill “clarified” limits on municipal efforts to implement certain design restrictions on housing.  It was strongly opposed by most Mecklenburg municipalities.  It also shows meddling in local affairs is not just a purely Republican purview.  Democrats get in on the game as well.

So, if something like H2 bothers you, ask your candidates this question.  “Do you favor abandoning Dillon’s Rule for expanded home rule for local government?”

If the answer is “no”, or even worse they don't know what you are talking about, then don't vote for them.

This post first appeared in this week's Herald Weekly at

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