Authored by: Andrew Mullen; Staff Editor 

As the United States struggles to get control over the COVID-19 outbreak and a consequential presidential election in three weeks, local government is a vital, often overlooked function of American society. While many people may be tempted to focus on national politics and national policy, most of the decisions relating to the pandemic have been made by mayors, school boards, county supervisors, and local health districts.[1] When someone needs a government service, it is most likely to be provided by a county or city government entity.[2] For example, utilities are a common service that people receive from local governments.[3] Local governments regulate public utilities because it is ordinarily permissible for local governments to regulate what is reasonably necessary to protect the community.[4]

States vary in how much authority is given to local governments, with some following “Dillon’s Rule” and others following the “Home Rule.”[5] Dillon’s Rule, which 39 states follow, permits local governments to exercise authority only over what is authorized by the state.[6] In Home Rule states, localities exercise broader powers and state interference in local affairs is limited.[7] Home rule is synonymous with local autonomy, where localities are authorized to do anything that the state legislature can as long as it is not explicitly forbidden by state law.[8] In states following the Dillon rule, local governments do not have as much autonomy, which means  they are not able to achieve potential policy goals such as banning smoking in bars and restaurants, raising the minimum wage, or banning fracking, unless there is a state statute that grants that power.[9]

Two policies that have generated stark contrast between localities and states during the pandemic relate to restaurants and schools, most notably in municipalities like New York City, where COVID restrictions vary even between neighborhoods.[10]

The COVID-19 outbreak has affected many industries, but it has hit the restaurant industry particularly hard, with the Q2 2020 Yelp Economic Average Report estimating that there have been 26,160 restaurant closures in the U.S. as of July 10.[11] These closures have hit localities all over the country, including Richmond, Virginia where the Richmond Henrico Health District revoked the permits of seven restaurants that were not adhering to coronavirus restrictions.[12] The local health districts have the authority to shut down restaurants, pursuant to both local and state law.[13] While a lot of people have viewed health regulations through the lens of the federal government and institutions like the Center for Disease Control (CDC), the local health departments have been the institutions actually exercising authority over restaurants and businesses.[14] Federal and state institutions have provided the guidance, but it is the localities that have done the actual enforcing, because the local health departments are more adept to monitor the health conditions of their districts than the state. [15]

One of the biggest effects of the pandemic has been the closure of schools, with many school districts delaying the start of the semester or opting to open remotely.[16] In Virginia, the schools are controlled by the state.[17] However, local school boards are given deference when it comes to a lot of the decision making, including redistricting and determining the length of the school year.[18] The pandemic has illustrated how this authority gets deferred to localities, with school boards throughout the country deciding whether they would open for in-person instruction this fall or would remain online for virtual instruction.[19] In Virginia, many school districts, even in the same region, have taken different approaches, with places like Henrico County and the City of Richmond opting for virtual learning for the first nine weeks, while Hanover County gave families an option of letting their children return to the classroom or remain online.[20] This is an example of why strong local governments are better-equipped to make these local decisions than the state government, because what one locality does might not be what another locality wants to do or is able to do.[21]

Local governments do more than issue health citations. Local governments deal with issues ranging from land use, welfare, utilities, and permits/licenses.[22] States are frequently unable to effectively carry out these types of policies and regulations without help from localities, because localities have different needs and different wants.[23] This public health crisis has made this clear, and made the need for strong local government even clearer.

[1] See Richard J. Meagher, Column: Stakes are High in Local Elections, Rich. Times-Dispatch. (Sep. 28, 2020), https://richmond.com/opinion/columnists/richard-j-meagher-column-stakes-are-high-in-local-elections/article_b4c235c4-606b-53ae-9a9e-b6d4e5dbb2f4.html

[2] See id.

[3] See 2 Antieau on Local Government Law § 28.09 (2d ed. 2020)

[4] Id.

[5] See Cities 101—Delegation of Power, Nat’l League of Cities (Dec. 13, 2016), https://www.nlc.org/resource/cities-101-delegation-of-power

[6] See id.

[7] Id.

[8] See 1 Antieau on Local Government Law § 21.01 (2d ed. 2020);

[9] Id.

[10] Karen Matthews, COVID-19: New York City Mayor Calls for Shutdown of Schools, Restaurants, Gyms in Several Neighborhoods due to Covid Resurgence, USA Today (Oct. 4, 2020), https://www.usatoday.com/story/news/nation/2020/10/04/nyc-mayor-de-blasio-schools-restaurants-shutdown-9-zip-codes/3618486001/

[11] Leslie Wu, United States Restaurant Industry Hard Hit With Closures, According to Industry Research, Forbes (July 28, 2020), https://www.forbes.com/sites/lesliewu/2020/07/28/united-states-restaurant-industry-hard-hit-with-closures-according-to-industry-research/#23de66247630

[12] Sierra Fox and Alonzo Small, 5 of 7 Richmond Restaurants Reprimanded for Violating COVID-19 Regulations Reopen, ABC8 News (Sep. 25, 2020), https://www.wric.com/health/coronavirus/7-richmond-restaurants-reprimanded-for-violating-covid-19-regulations/

[13] See Va. Code Ann. § 32.1-31 (2020); Rich. Code. of Ordinances Sec. 15-1

[14] See Sierra Fox and Alonzo Small, 5 of 7 Richmond Restaurants Reprimanded for Violating COVID-19 Regulations Reopen, ABC8 News (Sep. 25, 2020), https://www.wric.com/health/coronavirus/7-richmond-restaurants-reprimanded-for-violating-covid-19-regulations/

[15] Id.

[16] See Amelia Nierenberg and Adam Pasick, Schools Reopening in the Covid-19 Pandemic: The State of Play for K-12, N.Y. Times (Sep. 9, 2020), https://www.nytimes.com/2020/08/17/us/k-12-schools-reopening.html

[17] See Va. Code Ann. § 22.1-2 (2020); Va. Code Ann. § 22.1-16 (2020).

[18] See Va. Code Ann. § 22.1-79 (2020).

[19] See Amelia Nierenberg and Adam Pasick, Schools Reopening in the Covid-19 Pandemic: The State of Play for K-12, N.Y. Times (Sep. 9, 2020), https://www.nytimes.com/2020/08/17/us/k-12-schools-reopening.html

[20] Justin Mattingly, Online, In-Person or Both: Across Virginia, School Reopening is the Hot-Button Issue of the Summer, Rich. Times-Dispatch (July 18, 2020), https://richmond.com/news/virginia/online-in-person-or-both-across-virginia-school-reopening-is-the-hot-button-issue-of/article_4f6a5a1f-a228-5b1a-8778-6610ca6d274c.html

[21] See Id.

[22] See 2 Antieau on Local Government Law § 27.01 (2d ed. 2020); see also Richard J. Meagher, Column: Stakes are High in Local Elections, Rich. Times-Dispatch. (Sep. 28, 2020), https://richmond.com/opinion/columnists/richard-j-meagher-column-stakes-are-high-in-local-elections/article_b4c235c4-606b-53ae-9a9e-b6d4e5dbb2f4.html

[23] See Amelia Nierenberg and Adam Pasick, Schools Reopening in the Covid-19 Pandemic: The State of Play for K-12, N.Y. Times (Sep. 9, 2020), https://www.nytimes.com/2020/08/17/us/k-12-schools-reopening.html; Justin Mattingly, Online, In-Person or Both: Across Virginia, School Reopening is the Hot-Button Issue of the Summer, Rich. Times-Dispatch (July 18, 2020), https://richmond.com/news/virginia/online-in-person-or-both-across-virginia-school-reopening-is-the-hot-button-issue-of/article_4f6a5a1f-a228-5b1a-8778-6610ca6d274c.html