« What is "principled federalism"? | Main | The district court's injunction (Updated Twice) »

Thursday, July 06, 2017

Why would a mayor abdicate his own city's powers?

If you are a NYC resident with an interest in local politics, then you know that the City tends to be hamstrung by the tendency of state judges to take an oddly narrow view of the City's legal powers that contradicts sensible readings of state law. Even odder, City leaders themselves sometimes take the view that state law leaves them powerless to act even when the text of the relevant state statutes flatly contradicts such claims of impotence.

Mayor de Blasio's unilaterally surrendering the City's power over its own roads and bridges Provides a case in point. Five years ago, I pushed the idea that New York City had authority under existing state statutes to toll its own bridges and roads as a means of reducing traffic congestion and funding mass transit. The argument is summarized in this op-ed in Crain's by myself, Fritz Schwarz, and Eric Lane: To summarize, the state legislature enacted what is now codified as section 1642(a)(4) of the state's Vehicle & Traffic Law (VTL) in 1957 conferring power on the City the power to "charg[e] tolls, taxes, fees, licenses or permits for the use of the highway or any of its parts, where the imposition thereof is authorized by law." The term "law" here can only be sensibly construed as meaning "either state or local law": Any other reading of the statute turns into into a meaningless tautology providing that state law authorizes tolls when state law authorizes tolls. Moreover, the historical context of the '57 statute indicates that it was enacted in response to a Blue-Ribbon Commission's urging that the City's revenue powers be increased to save the City's transit system. My view of the law has been endorsed not only by Fritz Schwarz (who chaired the charter commission responsible for drafting the City's current form of government) and Eric Lane (who was that commission's director and counsel) but also Richard Briffault (Columbia Law School), Clay Gillette (NYU), and Nestor Davidson (Fordham), all experts in local government law. (You can read the Memo laying out the argument in tedious detail that these luminaries endorsed here).

Yet Mayor de Blasio's Administration adamantly asserts that the City lacks the legal power to toll its bridges as a reason to refuse to study congestion fees. As I argue after the jump, the apparent politics behind a mayor's unilateral surrender of his own city's legal powers suggests that paper law, however plain, is insufficient to overcome a legal and political culture destructive to city home rule.

Consider three reasons why mayors might adopt positions that practically abdicate legal powers of their own city.
1. Political cover: De Blasio does not especially want to deal with congestion fees. Although Move NY's "home rule" plan has sensibly appealed to a wide array of interests, there are always interests on the other side. Rather than being forced to choose, it is convenient for de Blasio to plead powerlessness. Ducking for the cover of city powerlessness is just a specific instance of Daryl Levinson's more general observation that, far from seeking to build empires, officials often want to avoid blame through inaction.

2. Choose the most inattentive master: In New York, the mayor of NYC can enjoy powers as an officer of the state even if the City lacks power as a chartered city. A case in point is the mayor's control of city schools -- a power drawn from the state Education Law that bypasses City Council and other institutions in NYC's charter. The mayor might prefer to exercise state powers without being confined by city charter institutions, because state oversight might actually be weaker than Council oversight. After all, the state legislature is hampered by a bicameral structure, a governor, an Upstate agenda, and two political parties. By seeking authority through a special state statute courtesy of Albany, the mayor can strengthen his own executive power at the expense of the local legislature, the community boards, and other pesky overseers of mayoral power provided by the charter.

3. Choose the path of least resistance: If there is a general background norm of going to Albany to do anything unusual, then that norm can create expectations that are costly to defy, even when some specific law theoretically allows the City to defy them. Congestion fees are a case in point. I have been repeatedly asked by politicians and reporters why Mayor Bloomberg went to Albany for authorization to impose such fees if the City already had the power to enact a local congestion fee law under the existing VTL. Of course, lacking inside knowledge, I cannot answer the question definitively, but I can make an educated guess: Everyone expected Mayor Bloomberg to go to Albany, because the City generally always goes to Albany to do anything remotely novel. To resist the force of habit would be to be a bit of affront to Albany's leaders and risk having the state legislature repeal the very statutory authority on which the City could theoretically rely. That the state legislature enacted a statute permitting the City to act on its own back in 1957 might have done little to appease former Albany power brokers like former Assembly Speaker Sheldon Silver: That power had lain unused for a half-century, the occasion for its ratification and indeed its very existence long-forgotten. Especially since Bloomberg had reason to believe that he had the votes in Albany to get what he wanted, it made good political sense for the Bloomberg Administration to follow the well-worn path up north for a new statute regardless of what existing state statutes might say.

That rationale for following political habit rather than the actual law, however, has an unfortunate if inadvertent effect: It sends the implicit message that the mayor has conceded city powerlessness. That, at least, is the most common comment I have gotten from by journalists and politicians doubtful of the city's statutory power, even when such power is staring straight at them from the statute book.

In this way, the plain letter and spirit of actual law is overwhelmed by a conventional wisdom nonetheless powerful for having no defensible normative basis. It is the quasi-law of conventional wisdom that passes for the law in New York and plagues the City with gratuitous trips to placate politicos in Albany, even when the vast majority of affected people reside right here in the five boroughs. That it is nonsensical for city leaders to go hat in hand to beg assemblymen from Rochester and Cortland County for permission to toll a bridge that none of their constituents will ever cross does not matter. The blob of conventional wisdom, created by habit, political cowardice, or mayoral tactics obscures what the actual law really says.

Posted by Rick Hills on July 6, 2017 at 06:01 PM | Permalink


Rick, by wild chance, do you live in Manhattan as well as work there? What seems like good public policy to the residents of that tiny island seems very different to those who live in the Bronx, Brooklyn, and Queens. My recollection is that Mayor Bloomberg, when proposing to toll the East River bridges wanted to exempt cars belonging to Manhattan residents only to find out that there was no political support. It's not the folks in Cortland County who are preventing this from happening.

Posted by: PaulB | Jul 6, 2017 6:33:53 PM

I live in Brooklyn (Cobble Hill), PaulB.

Sam Schwarz's 2015 plan for Move NY has won support from the drivers of the Outer Boroughs by proposing that the tolls on the major Outer Borough Bridges. -- Throg's Neck, Whitestone, and Triboro -- be lowered to reduce "bridge-shopping" that clogs the Manhattan and Brooklyn Bridges. You can read about the 2015 plan here: http://iheartmoveny.org/wp-content/uploads/2015/02/2015-MNY-Final-Ex-Sum-copy.pdf. For a detailed look at the plan and who pays (mostly Manhattanites, who create the bulk of the East River Bridge traffic) see the full plan at http://iheartmoveny.org/wp-content/uploads/2015/02/Move-NY-Fair-Plan-150217v1.pdf.

Because NYC cannot control those MTA-owned bridges, the city-initiated plan cannot lower the tolls on those major Outer Borough bridges. Instead, the city plan would toll the city-owned bridges by the cost of a subway fare card and use the proceeds to subsidize city residents' subway fares. Again, given that most Outer Borough commuters use the subway, this is a good deal for them. The plan has also been endorsed by the Metro Taxicab Board of Trade and the drivers' union, and the livery cars. See. https://movenewyork.wordpress.com/2015/05/07/metropolitan-taxicab-board-of-trade-endorses-move-ny/. Taxis lose a lot of money from traffic that limits their pick-ups per hour.

Posted by: Rick Hills | Jul 6, 2017 11:02:38 PM

Post a comment