Cardozo Law Review
Abstract
Despite more than a century of reform, state constitutional law governing the state–local relationship remains unsatisfactory. Current doctrine governing intrastate federalism struggles with the same issues as the more familiar interstate federalism doctrine does: in both contexts courts have failed to choose between categorization and balancing. Two recent trends highlight this unsatisfactory pocket of state constitutional jurisprudence. One is hyperpreemption, where punitive state laws override local regulations and invade traditional zones of local police power. The other pressure point is the nationwide housing crisis, which provokes intrastate conflict when state governments act to preempt local zoning to permit more, denser, and more affordable housing.
In this Article we propose proportionality review as the way forward. Conflicts over home rule represent a clash of foundational principles: between local autonomy and the general welfare of the community. Courts and scholars reach for proportionality in other similar constitutional traditions concerning a clash of principles. Proportionality requires that one principle give way, but only as necessary to accomplish the important interest that justifies giving priority to one of the principles. In the state–local context, a proportionality analysis would minimize hyperpreemption because state interests are typically too slight in most cases and the state actions too sweeping. Yet targeted preemption of local zoning authority to address the housing crisis probably would pass muster. Using California as an example, we examine recent California cases that suggest California law is trending toward proportionality review and argue that this trend should become the rule in every state.
Keywords
Sales, Taxation--State and Local, Taxation, Government (General), Mandates
Disciplines
Law | Taxation-State and Local
Recommended Citation
Darien Shanske & David A. Carrillo,
A Proportionality Analysis Should Govern Home Rule Disputes,
44
Cardozo L. Rev.
1843
(2023).
Available at:
https://larc.cardozo.yu.edu/clr/vol44/iss5/4
