Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of Federalism

Due, in part, to Justice Brandeis\u27 famous dissent, many have presumed that the states are the most fertile ground for policy innovation. However, with their transformation from smaller urban and rural centers to major metropolitan regions, local governments may prove even more fruitful agents of social change and laboratories for policy experimentation. Indeed, local governments are critical components of our federal system and embody the values of federalism both in theory and practice. Local governments have trailblazed in legal and policy arenas where the federal and state governments could not (or would not) engage: gay rights and gay marriage, campaign finance and other electoral reforms, climate change, illegal immigration ordinances, and living wage laws, to name but a few. Yet local governments\u27 powers are drastically limited by a perhaps overzealous preemption doctrine. This, in turn, thwarts local governments\u27 ability to serve as effective laboratories for democracy and policy innovation. This preemption doctrine also may run afoul of the original intent of the home rule movement in state and local government law. Accordingly, this Article questions the wisdom of the current preemption doctrine that limits local governments\u27 ability to serve as Petri dishes for innovative policies that might translate well to the state and federal levels of government