Episode 30: What’s the Dillon Rule and how does it define power in Virginia?

Virginia politicians like to talk about freedom and local control. So why are local governments sometimes prohibited from addressing local challenges?

The reason is called the Dillon Rule.

If you’re a political news junkie, you’ve probably come across this, but most Virginians stare at me blankly when I mention it.

Basically, the Dillon Rule says that local governments only have powers that are explicitly granted by the General Assembly. (As opposed to “home rule,” where local governments are free to make any policy that isn’t prohibited by state law.)

How does this affect our local governments and our state as a whole?

To answer that question, we talk to Richard Schragger, the Parre Bowen Professor of Law at the University of Virginia School of Law and the author of City Power: Urban Governance in a Global Age. We also talk to Andreas Addison, a member of the Richmond City Council and a lecturer at the Batten School of Leadership and Public Policy at the University of Virginia, who has dealt with the Dillon Rule as part of his legislative experience.

Episode Transcript

Nathan Moore: This is Bold Dominion, an explainer for state politics in a changing Virginia. I’m Nathan Moore.

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I want you to take you on a journey through time… back to January 2020, when Bold Dominion was still a baby in swaddling clothes. In our very first episode, we did a deep dive looking at how the Virginia legislature really works. Since then, we’ve cut our teeth on a number of policy discussions. We came of age in conversations about elections, activist organizing, and political power in the state.

This week, it’s back to basics for Bold Dominion. We’re diving into a piece of Virginia law that you may or may not have heard of. It’s called the Dillon Rule. And it’s a really important legal principle that underlies how Virginia frames state issues versus local policy. 

See, the Dillon Rule effectively states that local governments only have powers that are explicitly granted by the state. That’s as opposed to Home Rule, which is basically the reverse. In a Home Rule state, cities and counties can legislate as they see fit -- just as long as no state law prohibits a local measure.

There is a lot of in-between, too. Some states impose the rules selectively among their municipalities. And the Dillon Rule is still in effect to some extent in around 40 states. But Virginia’s interpretation of the Dillon Rule is one of the strictest in the country. The result is that local governments often cannot pass measures to address their local problems. At least not without the General Assembly making special exceptions. So how does this actually play out?

Andreas Addison: There have been challenges I have where, you know, to enact a certain law. within my own city boundaries, I am either not allowed to pursue that avenue or I'm limited to my powers and authorities by the state legislature to do so. What happens then is it delays my ability to act. Sometimes it creates some barriers to successfully create policy programs, or initiatives that can directly impact residents and constituents.

NM: That’s Andreas Addison. He serves on the City Council in Richmond and is a lecturer at the Batten School of Leadership and Public Policy at the University of Virginia. In the second half of the show, we’ll hear more from him about how the Dillon Rule actually affects the powers of local representatives on a practical level.

But first, we turn to Richard Schragger, the Parre Bowen Professor of Law at the University of Virginia School of Law. He’s the author of the book City Power: Urban Governance in a Global Age. In this interview with Bold Dominion producer Rachel Liesendahl, Professor Schragger walks us through the Dillon Rule, its conflicts and tensions, why he thinks it’s time to retire the rule completely.

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Richard Schragger: John Dillon was a jurist in the 19th century and a law professor as well. And he wrote a treatise on Constitutional law. But one of the things that he said in that treatise was that local government--cities, municipalities--should only have the powers that are expressly granted to the city by the state legislature, and those grants of power should be narrowly construed. And that's because Dillon was concerned that municipalities were abusing their power in certain ways. In particular, they were engaged in activities that involved "economic development incentives," or what we would call today "economic development incentives." So cities were attempting to induce the railroads, for example, to come through their town, other kinds of things. And he was nervous about those kinds of activities.

In Virginia, the Dillon's rule is essentially a rule that says when you interpret an act of a municipality, you have to find a grant of authority for that act in the state legislature. Sometimes those grants of authority are pretty broad, but sometimes they're very narrow. And the courts are going to read any grant of authority against the local government.

Rachel Liesendahl: So in its contemporary use that we see in Virginia, what are some of the advantages to this legislative doctrine and what are some of the cons we see?

RS: My own view is that there aren't any advantages to it. But you know, some people defend the Dillon's rule on the grounds that all authority should come from--the state the state legislature is the appropriate place to grant authority. Some say that the legislature has provided enough general grants of authority to local governments so that it's--Dillon's rule is not a big barrier to local governing. Others say they worry about local governments doing things that are irresponsible or just wrongheaded. I think those are overstated concerns.

My own view of the Dillon's rule is that it's an outdated idea. It was adopted in response to a certain kind of historical time and a set of historical circumstances, particularly when cities were not as complex and elaborate and, for that matter, professionally managed in the way they are today. And so most states have moved away from Dillon's rule. They moved away from Dillon's rule actually pretty quickly as cities developed across the country and got larger and more complicated. And they moved towards a kind of doctrine we would call Home Rule.

And again, Home Rule is sometimes misunderstood. Home Rule is simply a statement, and it has different forms, but the basic idea of home rule is that cities should be able to legislate on all subjects to the limits of the state legislative power. What that means is they can just do their thing, address problems, issues, raise any kinds of policies that their constituents are interested in--they can legislate in those areas. If the state legislature wants to override that legislation, they often have the power to do so. Some states also give immunity to local governments in certain areas, so that a state legislature can't override. But generally what Home Rule grants do is just give the local governments what's called initiative power, which means that what they can do is initiate legislation and regulate and pass laws in areas that have not been explicitly provided for by the state legislature. So this allows them flexibility and allows them to actually regulate in areas that are new or novel that the state legislature hasn't had time to legislate over or the state legislature just hasn't thought about.

RL: Why then do you suppose that Virginia has opted to legislate under the Dillon Rule?

RS: So it's an interesting question why there's been resistance to modifying the Dillon's Rule. modifications were proposed in--particularly in the last major constitutional revision, which was in the early 1970s. And revisers of that constitution, adopted a home rule provision, a very simple two-sentence Home Rule provision that said, local governments have the broadest range of authority to act. And it was rejected. It was pulled out of that constitution. It's not clear exactly why, it kind of quietly went away.

The issue didn't go away, though. So there have been a number of reform commissions or committees that have met since then. I think maybe four of them, who tried to tackle this question of intergovernmental relations in the Commonwealth. And all of them have recommended some departure from Dillon's Rule, some reform that would move us away in the Commonwealth from the from the Dillon's Rule.

I think part of the issue in Virginia is that there are some broad grants of authority. So local governments do have the ability to exercise most of the conventional or traditional powers that local governments exercise, but there are many local governments, many cities, Northern Virginia cities in particular, but others as well, that chafe under the restrictions. And so they can't do many of the things that they wish they could do. And they have to go to the legislature every single year, many of them with long, long lists of legislation they would want the legislature to adopt, which if there was Home Rule they might be able to adopt by themselves.

RL: Are there any tools that local politicians still live in states in which the Dillon's Rule is enacted, that they can use to get those local initiatives passed?

RS: You know, it's very challenging. You know, one of the things, again in the Commonwealth, is there are these general grants of authority. And there are often municipal charters or city charters that have general grants of authority and localities have and do try to pass legislation or local ordinances on the basis of those grants of authority.

What makes them nervous, though--and this is where Dillon's Rule I think has a broader application than even its kind of narrow application--what makes them nervous is being sued. And the court striking down those laws. And so when they go to... when they go to think about...a city council goes to think about something that looks a little bit novel or new, their lawyers often say: "Well, this might be tricky under Dillon's Rule," even though it hasn't been tested in court yet. And that serves as a kind of a--has a chilling effect on adopting that kind of legislation. Independent of whether it will be struck down by a court. So it means that the scope of potential activity for local governments is even narrower because they're just worried about being overwritten.

RL: Could you kind of highlight who the advocates for Dillon's Rule are? Those who benefit from the current policy and who loses out?

RS: I think in general, what you see in terms of the politics of Dillon's Rule is that the state legislature likes to be able to govern from Richmond. And so convincing state legislators, whether they be Democrats or Republicans, convincing them to give up power by providing Home Rule to local governments is a little bit tricky, regardless of the party in power. I think the Democrats more recently have been more amenable to passing statutes that give a broader amount of authority to local governments. The Republicans were more centralizing in that way.

In terms of others who might be comfortable with Dillon's Rule: there's also local politicians sometimes like to use Dillon's Rule as an excuse for not adopting certain kinds of regulations or policies that their constituents want. So they can say: "Oh, we can't do that because of the Dillon's Rule!" and it relieves them of some tough decisions. So that's not all local government officials. Lots of mayors, lots of members of City Councils desperately want more power--in Richmond, in Alexandria, in Charlottesville--and they don't get it. But there are some who are comfortable with the status quo, because it relieves them of a certain amount of responsibility.

RL: Could you speak to the implications that Dillon's Rule has on the average citizen?

RS: So it's a little bit invisible to the average citizen. But it turns out, it's quite consequential in the following ways: which is lots of citizens--and you see this on message boards and in letters to the editor and so on--want a certain kind of policy change, and they don't know who to address that advocacy to. They think: "Oh, if we want to take down Confederate monuments, we should fight for that by telling the mayor and the City Councilors that they need to do something about it."

Turns out, the mayor and the City Council can't do anything about certain issues in the Confederate monuments cases. Here in Charlottesville, before the state legislature changed the law, the law arguably applied to--the existing law arguably applied to the city and prevented them from removing the Confederate statues in the middle of town. But I don't think citizens understood that and continue not to understand that. They think that their local officials are not doing their job, because those local officials have a limited scope of power.

And that's across a whole range of issues, as I mentioned. And what that means is, it's sometimes hard to figure out who has jurisdiction over these kinds of questions, and then who you're supposed to...who you're supposed to reach out to.

It also makes the ability to reach out to change the law much more challenging, because you have to find your representative in Richmond, the General Assembly sessions are pretty fast and somewhat truncated. And they have limited ability to deal with all the possible bills that people want to, to advocate for. And so that just--it's just limited capacity down there. And that capacity could easily be taken up by local governments.

RL: I guess kind of last question, then, is what would you advocate local state lawmakers do in regards to Dillon Rule?

RS: Yeah, I mean, you've got it. I think they should repeal it. There's no reason not to. It would take two sentences. Those two sentences were promulgated in 1971. They were uncontroversial, at least to the drafters of that constitution, which is basically the constitution we have today. And yet it dropped out. And I think that's a problem.

So I think the General Assembly should adopt a kind of Home Rule statute, better yet Home Rule Constitutional Amendment, and also limit the amount of what's called preemption of local government regulations, which is when states override local government ordinances and try to be very attentive. I hope that led them would hope the legislature would be very attentive to how much power they exercise in relation to local issues.

NM: Richard Schragger is the Parre Bowen Professor of Law at the University of Virginia School of Law and the author of the book City Power: Urban Governance in a Global Age. Stick around…we’ve got more about how the Dillon Rule constrains the Richmond City Council after this short break.

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You’re listening to Bold Dominion, a state politics explainer for a changing Virginia. Visit us online at BoldDominion.org. Have a friend who’s trying to figure out Virginia state politics? Tell them about this show. And then subscribe in Spotify, Apple Podcasts, and wherever fine podcasts are served up. And while you’re there, why not leave a five-star review? 

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By this point in the show, you probably know more about the Dillon Rule than you ever thought you would. But wait, there’s more! How does the Dillon Rule actually play out on the ground?

To answer that question, we turn to Andreas Addison. He’s a member of the Richmond City Council and a lecturer at the Batten School of Leadership and Public Policy here at the University of Virginia. He talked with Bold Dominion producer David Hunt to discuss the effects of the Dillon Rule on his Safe Streets for All initiative. That’s a series of ordinances and resolutions intended to make Richmond streets safer for those who use buses, bicycles, and their own two feet to get around the city.

AA: Any locality or elected official in Virginia is impacted by the Dillon Rule in some way. There are limits to the letter of the law, and what it's explicitly giving the authority and powers to local government to do. There have been challenges I have where, you know, to enact a certain law within my own city boundaries, I am either not allowed to pursue that avenue or I'm limited to my powers and authorities by the state legislature to do so.

What happens then is it delays my ability to act, sometimes. It creates some barriers to successfully creating policy programs or initiatives that can directly impact my residents and constituents. And while we can lobby for our General Assembly partners in the Senate in the house to help support us in that capacity, it doesn't mean it's going to pass it's a lot of times, there are limits to authorities needed in our city that I feel like require state approval.

And so for my best most recent example, would be I'm looking for the ability to leverage radar detectors for speed enforcement in our city. Meaning that I don't mean to deploy more police officers for traffic control. It's meant that we can leverage technology which is used across the country just to make sure people know to drive safely and not speed. And that is continually voted down by the General Assembly for several reasons.

And so one of the challenges I have is that that doesn't stop the complaints I get for speeding. That doesn't stop the ability for me to work on trying to address that. This is one I think example of, I think, why the Dillon Rule can come into play when I am faced with a daily concern about the safety of pedestrians, bicyclists, but more importantly, just people in their neighborhood. And I have very little few means in which to push that.

David Hunt: You were quoted in Virginia Mercury saying that, because of the Dillon Rule, most of the measures in your "Safe Streets for All" package that passed were just a message of Council support. Why is that?

AA: There are a lot of limitations to what I can do. So I was actually instructed by our city attorney to where I would like to do an ordinance versus a resolution. Ordinance carries the weight of--like a support through the legal channels, it can be up to a misdemeanor of a charge for not complying. A resolution's pretty much just a formal way of asking for permission to do something, or for something to be done in response to what's being asked and legislated by the Council.

And so for me, there are things I wanted to put in the letter of the law. But given the Dillon Rule, they were I guess created to be more of a request to become a bill before either or both houses in the General Assembly. And so that was kind of what I felt that the Dillon Rule limited my ability to push that forward as an initiative.

Case in point, a lot of peer cities around the country that I used for the creation of my Safe Streets for All omnibus package allowed the cities could just enact on their own and enforce as they saw fit, because they're Home Rule. And that is a very different interpretation of the state charter and constitution in those localities. Because we are Dillon Rule, not Home Rule, that difference created, I think, some gaps in the ability of me to respond in my elected official role.

DH: Aside from lobbying for legislation at the state level, what power does the City Council have to affect change?

AA: So there are a lot of areas in which I think a City Council can be disruptive, and I think disruptive in a positive way. I think that there are controls in which you can do through a local ordinance or policy adoption to where you're going to be challenged, some of the powers may be not given explicitly by the General Assembly, but can be defined as "we should have this ability." And then I think showing that there's either a case study of approval of it, or you pilot it in a neighborhood or part of your city or your jurisdiction, to see what we can do together. And I think to me, in response to the, for example, the radar speed enforcement not being passed again, then fine. Let me adopt a network of radar supported speed tracking, and create a smart city initiative around our city to see where speeding is happening in real time, so that we can look at the resources that would be needed by police to respond to that accordingly.

And so I think there are efforts that cities can take, when challenged with explicit authority, as defined--as required by the Dillon Rule to say then, "Fine, let me find another way to prove to you that this is something that the locality needs." I also think that there's a conversation that can be addressed, too, of...you know, there are needs in the rural communities--southwest Virginia, for example--that are policies and powers that the local government needs that might not be relevant in a metropolitan urban center such as Richmond, or even Hampton Roads or Northern Virginia. That doesn't mean it shouldn't happen. But I think in that there are certain powers that counties have, but cities do not, and vice versa.

And I think sometimes an evaluation of how to address that inequality or differences can be challenged through putting out good policy and a law locally. And what usually can happen then is the Attorney General can challenge it. In the worst case, you get sued, which I don't think has happened in a while or to a magnitude to create a true challenge in that capacity. But I do think there are ways in which localities can challenge certain laws to create action by the General Assembly to show that this is a need of a local authority. I think you can look at the statues conversation of last year. And I know that in January, for the second or third time before City Council, Councilman Mike Jones brought forth requests for the General Assembly by the City of Richmond to have local control of our Civil War monuments and statues.

So with that conversation, even though we had asked for it, it wasn't until that General Assembly that that was explored as a possibility. And that July 1, we were given the ability to control that, not knowing that the civil unrest and disorder was going to happen to the magnitude of demanding that from us, right. And I think that disruption created the timeline of being able to act immediately. And not immediately in terms of "we were ready to act on it." But I think knowing that July 1, which is the date that the majority of the statute started to come down here in Richmond, and that was only because we had sewn support for that type of measure that was then granted by the General Assembly.

But again, to be honest with you, the passage of that power, that authority, by the General Assembly to local governments in Virginia, was given a burden of the approval process and requiring certain timeframes of engagement and conversation periods of public engagement around how and when, what statues and monuments etc, created...not an undue burden, but an unforeseen challenge that given the magnitude of what was going on in our city. We had to act quickly. But the process takes time. Like even if you asked it in January, it still was six months before enacted. And then once enacted, it still took another technically six months to act upon that power.

DH: How would your ability to govern be different if Virginia adopted home rule?

AA: So I think if you were to look at an example of--a simple one would be banning plastic bags, or taxing plastic bags. I'm technically not able legally to do that as a city yet. And we ask for it from the General Assembly frequently. And I think, in looking at something like a Home Rule versus a Dillon Rule state is New York City just said: "Fine, we're taxing every plastic bag." I think it was like a nickel, five cents or ten cents. And I think DC has done a similar measure in their aspects. You know, decisions like that to where we want to enforce a change. It's not meant to be a revenue generator, but it's meant to be effectively pushing environmental sustainability and green initiatives across behavior change. And when you hit someone's wallet, they can pause about making that decision to continue something that we might not see as positive or healthy for the future of our city. And so given that we had some powers in that space, I do think it would create some different opportunities to act on our own.

I am concerned, though, because I think that, you know, in larger cities, I think our big metropolitan cities across the country, you know, you can absorb into your day to day, staff resources, a new task to enforce, regulate, monitor, track a locally created ordinance law. In a city like Richmond's size, we're 200,000 people, we're a large metropolis, we're 1.2 million collectively in the region. But as a city of 200,000+ people, you know, for our workforce to do a task like that. The only way it's going to work is if we enforce it. And enforcement's gonna take resources and people. And so that's the mix of...we're not designed to, I think, embrace what I feel like would be a Home Rule type of action. Because included in that would be the inherent need for resources in which to support the implementation, enforcement and tracking and monitoring of laws that we would create locally. And without state support of some of those efforts, it does mean that there are going to be some maybe unfunded mandates or burdens on additional staff. And I think the risk we have as a locality our size would be: "what are you sacrificing?" What's the give or take to adopt that new policy? What are you gonna have to give up in terms of another power or control because you can't keep hiring people just to do these new programs and initiatives over and over and over again. And that just becomes part of the challenge.

I think having Home Rule in certain areas would be empowering. I think some basic legislative authorities that just don't need to be given as a local power, but just to be explicitly understood as "these are things you can do," but things like streets, and things like roads and things where there's a standard across the Commonwealth, we want to enforce and support, like speed limits and other controls. I totally understand why having a Dillon rules set of powers and authorities is needed because you don't just want every locality doing different things, because then the consistency of how you traverse around our state would be challenged.

But things such as environmental things like plastic bag, etc. Why is that not an ability I can do on my own? To me, I think that's kind of one of the ways I think as a city to be prepared to actionize on more of a Home Rule state, it's going to be a whole different structure of government. And I think we've formed our government around Dillon's Rule, with the expectation that we act within our boxes defined and we don't go outside that box unless the General Assembly has allowed it to expand.

DH: Would you support a move from Dillon Rule to Home Rule in Virginia?

AA: I think in steps and phases to look at a transition from Dillon Rule to Home Rule, I think it's going to create some opportunities that we think would be very welcomed and great. But there are some risks that come in that inherently and also potential future blowback that we might not even foresee today where that could change in the future.

 I think maybe finding ways in which to kind of compartmentalize areas that we can create a gray area for local governments to work in. And I think creating that, maybe we get to kind of the middle. Where can we find ways so that cities and local governments can become a testbed for challenging new laws and rules and empowers authorities, and then bring them before the General Assembly to show whether they worked or not, instead of it being that the General Assembly has to decide whether or not that is possible. We're allowing local governments the kind of opportunity to test things out. Show us that this is worth pursuing as a state requirement of a new authority, power, other opportunity rather than having it be you have to ask for permission first.

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NM: Andreas Addison is a member of the Richmond City Council and a lecturer at the Batten School of Leadership and Public Policy at the University of Virginia. Thanks to him and UVA Law professor Richard Schragger.

My name’s Nathan Moore, and I’m the host of Bold Dominion. Big thanks as always this week to our producer Aaryan Balu. And a warm welcome and thanks to our two new assistant producers, Rachel Liesendahl and David Hunt. Find this show online at BoldDominion.org. Go ahead and subscribe… it’s just a click away.

And hey! We’re always on the lookout for topics for future episodes. Send your ideas to our email address – BoldDominion@virginia.edu. That’s BoldDominion@virginia.edu. Or direct message us on Facebook, Twitter, or Instagram. 

Keep social distancing, y'all. And I’ll talk with you again in two weeks!