•  
  •  
 
Indiana Law Journal

Document Type

Article

Publication Date

Winter 2024

Publication Citation

99 Indiana Law Journal 417 (2024)

Abstract

Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public properties are splintered between a grand total of fifteen different government bodies.

How do localities navigate their shared powers in a shared governance ecosystem? In the absence of state guidance, local governments fashion ad hoc, largely circumstantial, and often informal regimes of interlocal power. Sometimes they compete with each other to control a public asset, while at other times they coordinate and exercise power in a joint manner. Sometimes they abstain from acting, on the hope or expectation that another local entity will take the lead, and at other times they bandwagon onto the governance decisions of another body. Rarely are these relationships set in stone. Instead, a relationship built on collaboration may devolve suddenly into competition, while even written agreements that delineate how two governments will exercise their redundant powers can prove illusory on the ground.

Uncertainty reigns supreme in this interstitial universe, yielding an interlocal governance haze that this Article aims to highlight and moderate. The Article demonstrates why redundant and muddled power is so common, how it manifests in practice, and why state legislatures generally take a hands-off approach to the issue. Yet as it also demonstrates, legislatures sometimes do intervene, at times aggressively, to reorder interlocal power in pursuit of substantive policies or particular political goals. Intergovernmental power dynamics can thus lurch between the polar nodes of local indeterminacy and haphazard, state-imposed change.

To break the impasse, this Article considers a counterintuitive strategy for local government officials: proactively asking the state to limit their power by creating an administrative oversight framework where none currently exists. Such a framework would enhance local democracy by shedding sunlight on conversations that today often occur in the shadows. It could also carve a middle-ground approach between the well-trod and often politically-fraught poles of state fiat and local autonomy, one where, instead, local actors can pursue a procedural initiative today to ward off unpredictable state interventions down the road.

Download

Share

COinS