subsidiarity Archives - Prindle Institute

May 24, 2021December 14, 2022

A Challenge to Federalism: Mask Mandates and Subsidiarity

In this post I want to investigate a puzzle about federalism, and in particular a puzzle for those committed to subsidiarity.

Federalism is a political system in which power is divided between more and less local governments. The United States has a federal system, decisions are made by local governments, state governments, and the federal government. Not only are decisions made by these various bodies, but different bodies are empowered to make different decisions.

Sometimes you will hear people claim they want a greater degree of federalism, and what that usually means is that they want more decisions to be made by individual states, and fewer decisions to be made by the federal government. Thus, the conservative lawyer and journalist David French published a book last year arguing that an increase in federalism is necessary to handle political polarization. French thinks that, given that California is far more liberal than Tennessee, it makes more sense to have California and Tennessee each develop their own healthcare systems, rather than have one federal healthcare system.

Now, the puzzle I want to investigate can be asked in those general terms, but the puzzle will be clearer if we look at a more specific form of federalism.

Subsidiarity is an approach to political philosophy which says that decisions should be made by the most local body capable of making the decision. Everyone in my household can decide what book to read on a Saturday afternoon, so it should be up to each person what to read. I should not decide what my wife should read, nor should she decide what I read. If we want to take a family vacation, however, then we can’t just each decide where we want to go. If we each decide, then she might go to the mountains while I go to the beach, with the result that we don’t take a family vacation at all. Where to vacation, then, must be made at the family level. We, as a family, cannot set up a sewer system, and so the county should be in charge of deciding how to distribute water and electricity. Our county cannot administrate an intrastate road system, and so intrastate roads should be handled by the state. The state of Florida cannot coordinate for national defense, and so national defense should be handled by the federal government.

Why might one support a principle of subsidiarity? Well there are lots of reasons. First, you might think that more local control allows decision makers to be more responsive to local conditions and preferences. Thus, many oppose federal minimum wage legislation on the grounds that it is better to allow individual states to decide the minimum wage that is best for them. Most people will agree that the minimum wage in Switzerland should be different from the minimum wage in Bangladesh, but if different economic conditions across countries mean we want a different minimum wage, why would the same not be true between individual U.S. states?

Second, you might support subsidiarity on the grounds that it provides laboratories of experimentation. If each state tries their own healthcare system, then we are more likely to discover which system actually works best.

Third, and I think most plausibly, you might support subsidiarity on grounds of democracy and freedom. The more local an election, the more influence an individual can exercise. If I have more say over local decision-making, then it seems more democratically legitimate for a local body to make decisions on how I can live. Not only that, but because the United States is heterogeneous, with people often clumped with others of similar political persuasion, the more we devolve decisions to local control, the more people will be governed by the sort of policies they would choose themselves. If most people in California want state-funded healthcare while most people in Arkansas do not, then a federalist system where each state can adopt their own healthcare system helps ensure that most people are governed by the system that reflects their particular political preferences.

So what is the puzzle? The puzzle is raised by policies where a less local government bans a more local government from restricting even more local decision-making. The example that started me thinking about this came from my home state of Florida. Governor DeSantis recently signed a bill to end all local COVID-19 restrictions and emergency orders. In doing so, Florida has joined other Republican–controlled states in passing laws that prohibit local authorities from instituting more restrictive COVID precautions.

As someone who generally supports subsidiarity, how should I think about these policies?

We could make a federalist or subsidiarity argument both for and against these state policies. The argument against these policies is easy: subsidiarity says that we should generally defer to more local decision-making. A state coming in and saying that a local town cannot have their own mask mandates overrides that local control. Counties and cities should be free to make their own decisions, as such, it is inappropriate for the state to ban cities from passing mask mandates.

However, you could also make an argument for the other side. You might say that it should be up to individuals whether or not they wear a mask. Individuals and families should be free to make their own decisions. As such, it is inappropriate for local authorities to maintain mask mandates at this point in the pandemic, and as such it is right for the state to step in in order to protect individuals from the overreach of local governments.

To help understand the conflict, imagine we iterated this puzzle at a higher level. Just as Florida passed a law banning cities from requiring masks, suppose the U.S. Federal Government passed a law banning states from prohibiting mask mandates. You could say this is bad for federalist reasons, the federal government should leave it up to the states. But you could also say this is good for federalist reasons, this ensures that states don’t overstep and violate the freedoms of local authorities.

This puzzle of subsidiarity is actually just a particular example of a puzzle that crops up in lots of places. Consider, for instance, this puzzle raised by Marcia Baron:

“An administrator once told me about the following dispute. A speaker had been invited to campus. The point of his lecture would be to oppose free speech. Some of the faculty objected strenuously to having him to campus and favored ‘uninviting’ him. Free speech is a great value, and they did not want to see it undermined by this or any other speaker. Others defended the plan to bring him to campus – and they did so in the name of free speech.

How could both parties appeal to free speech – and only free speech — in defense of their respective views? Those who opposed the speaker’s visit saw free speech as a goal, a goal which would not be advanced and might well be hindered by a speaker who spoke against it. Those who supported the speaker’s visit saw free speech as a matter of principle, imposing a side-constraint on our conduct. In the view of the former, what is desired is that free speech flourish, and to that end it might occasionally be necessary to squelch (what would otherwise be) free speech. In the view of the latter (those who supported the speaker’s visit), free speech is a value not in the sense of a goal to be promoted, but a value never to be violated. It would be a violation of free speech to prevent a speaker from speaking on the ground that his or her views were considered noxious, outrageous, or dangerous. That allowing the speaker to speak might undermine the cause of free speech by winning over some impressionable college students to the speaker’s side is irrelevant, in the supporters’ view. Those who opposed the speaker’s campus visit viewed free speech as a goal to be promoted or advanced. Those who opposed the attempt to uninvite the speaker saw free speech as a matter of principle: as constituting a side-constraint on our conduct. Side-constraints work this way: they tell us that no matter how worthwhile the goal, there are things which we may not do even if they are crucial for that goal.”

This is, I think, the same sort of puzzle. Can we restrict speech to maintain more freedom of speech? Can states force decisions on local governments, to stop them forcing decisions on others? And if Marcia Baron is right, the question we need to answer is does subsidiarity work like a side-constraint, or like a goal to be promoted? If it is a goal to be promoted, then these state policies might make sense. If it is instead supposed to act as a side-constraint these policies are problematic. How does one decide?

I don’t think there is any easy answer. Even if you look at one particular reason for accepting subsidiarity it can be tough to decide. Suppose you think that more local bodies are better able to make decisions for themselves. One the one hand, that might support allowing local governments to decide what is best for their specific conditions. But on the other hand, that might support letting each person decide for themselves whether or not they want to continue masking. And there is something to both these thoughts. Ideally, those who are vaccinated can mostly go without masks and those unvaccinated should continue wearing masks. So, ideally, people could make the best decision for themselves.

But then again, sometimes people make bad decisions and impose risks on others, and you might think that local authorities are in the best position to know how high the general risk is in a given local community.

In this particular context I’m inclined to think that local authorities should be empowered to make emergency decisions. I think the principle of subsidiarity means that states should not dictate what local governments can do.

But on the other hand, sometimes I support overarching restrictions. For instance, the Constitution is federal law that prevents states from imposing a religion on their citizens. I think the choice of religion should be up to individuals, and as such it is appropriate for the Supreme Court to impose on states a prohibition on compelling religious practice.

The puzzle persists, then, and there are no easy answers.

August 2, 2019June 21, 2023

The California Housing Crisis and Collective Action

The situation in California has become increasingly dire, and is even beginning to appear on the periphery of the 2020 presidential race. While there are factors that make California unique, it might be a sign of things to come for cities like Chicago, Austin, and Nashville. The political discourse currently taking shape may be indicative of the US’s future treatment of problems stemming from population growth and density.

California’s housing shortage places enormous pressure on tenants as supply shrinks and demand continues to expand. Strong economic growth, mostly in the tech sector, has created hundreds of thousands of new jobs, but has been met with inadequate construction of necessary housing. A report by the McKinsey Global Institute found that California needs to build 3.5 million more homes by 2025 to meet demand. This situation has seen the state’s home prices grow to 2.5 times the national average, while rents are 50 percent above average. As a result, nearly a quarter of the nation’s homeless population lives in California.

Current homeowners like Los Angeles resident Glenn Zweifel insist that “there is not necessarily a shortage of housing but an excess of people,” and attribute the problem to an attitude of entitlement: “Just because you want to live somewhere doesn’t mean you can.”

This, however, oversimplifies the problem. First, this is a matter of displacement; it isn’t simply a case of turning prospective residents away. Property values are skyrocketing which means that current tenants can’t earn enough to keep up with rising rents. It’s estimated that you’d need to make $34/hour in order to afford a two-bedroom rental home. Not everyone is in a privileged position to be able to uproot their lives. Tenants may not have much of a choice about where they live; their jobs, families, and financial, medical, or social situation may mean that relocation is simply not an option.

Second, the housing crisis is a byproduct of class and generational conflict. The interests of old, rich, white property owners are at odds with the young, poor, minority renters. The two main obstacles to increasing housing development are zoning laws and community opposition. Apartment buildings are banned in most of California, and single-family zoning laws prohibit higher-density housing construction in residential areas. Current residents don’t want affordable housing going up next door. They are intent on protecting the value of their assets, and know that environmental protections can be easily abused so as to protect their investment.

Conservative/libertarian writers, like Edward Ring, emphasize concerns of fairness:

“There’s a reason people work hard for decades to pay off their mortgages so they can own homes in spacious suburbs. It’s because they value the leafy, semi-rural atmosphere of an uncrowded suburban neighborhood. [Policy initiatives] will effectively double the housing density in these neighborhoods, violating the expectations of everyone living there who relied on the zoning rules that were in effect when they bought their homes.”

Property owners, they argue, have earned the right to restrict others’ access to those goods for which they have labored. To undermine that basic right of ownership and fail to reward these individuals’ hard work is manifestly unjust. And yet lawmakers continue to recommend the

“forcible integration of people who, for whatever reason, require government assistance to support themselves, into communities of taxpayers, who, by and large, are working extra hard to pay the mortgages on overpriced homes in order to provide their children with safe neighborhoods.”

Market forces may be conspiring to put people on the street, but property owners, so the argument goes, are not the guilty party and are not obligated to make accommodations. In the end, they argue, it’s unfair to have homeowners shoulder others’ burdens.

This is a common sentiment. But the neighborhoods in California are, in effect, gated communities aimed at maximizing monetary gains and keeping out the undesirables. Even when residential communities are pried opened and new residents are admitted, those who’ve threaded the needle and somehow gained access to such a scarce resource are the very same that attempt to slam the door closed behind them. As San Francisco Assemblymember Phil Ting explains, “If you’re a city council, the people who vote for you oppose the housing you’re creating, and you’re creating housing for the people who have yet to move in. And when they do move in, they fight the next project.”

The political incentives all point in one direction. Homeowners are entrenched; they have ties in the community and their voices carry the weight of immediate political consequence. There are few other voices — certainly not the homeless or prospective residents — that might countermand it. This may change if businesses start feeling the effect of not having the necessary workers and talent to function. Being unable to attract necessary professions like nurses, teachers, janitors, and firefighters threatens to grind the economy to a halt. Property Shark notes that despite San Francisco paying nurses one of the highest wages in the US, a nurse would have to earn 10 annual incomes in order to afford a house there. The situation is no different for tech workers. But until businesses start feeling the pinch, there is more of a political incentive to protect current residents, slow development, and push the homeless to shelters elsewhere.

Conservatives are often partial to subsidiarity — the idea that actors closest to the problem are the best positioned to address it. They prefer local solutions which might limit government meddling and eliminate red tape. But the California Housing Crisis is a collective action problem; conflicts of interest between individuals encourage actors to pass the buck, while sustainable solutions require a concerted group effort. The consequences of doing one’s part to address the housing crisis encourage free-riding (that mirrors the immigration crisis at the national level). Those who flout their obligations are the ones who stand to reap the greatest rewards. Towns who haven’t built an apartment in a decade are also ones where the median home sells for $1.6 million. Given the incentives at play, a decentralized approach is unlikely to work.

There are a number of proposed solutions, but the two which have gained the most traction concern “upzoning” and rent control. SB 50 would allow apartment buildings to be built near major transit hubs, increasing housing capacity six-fold while also mitigating increased traffic congestion. It represents a market-based solution that looks to harness developer incentives in order to accelerate the development rate.

But critics contend that a market-based solution like SB 50 is unlikely to provide relief. Michael Storper, a professor of urban planning at UCLA, argues that the bill is essentially about “raising housing opportunities for highly skilled, relatively high-income people.” Upzoning may encourage more housing, but it will be housing designed to maximize the return on investment. The bill doesn’t make development in lower-income neighborhoods any more attractive or profitable. Instead, it may very well “gentrify what’s left to gentrify in highly desirable areas.” Francisco Dueñas, the housing campaign director at the Alliance of Californians for Community Empowerment, agrees: “We think that in general, similar to what happened in Chicago, [SB 50] is just going to increase the value of that land, fueling greater speculation, and then that gets translated into increased rent and more people getting pushed out.” Ultimately, while the bill may encourage development thus increasing supply, critics worry it does nothing to address the issue of displacement.

An alternative aimed directly at this issue is rent control. (One such proposal, Proposition 10, was on the ballot in 2018 and was defeated. Another measure, AB1482 is currently gathering steam.) As property values soar and wages stagnate, renters are unable to keep up with rising prices. By placing legal limits on what landlords can demand for rent and tying those figures to cost of living calculations, these measures hope to protect renters from effectively being forced out of their residences. Renters may no longer be victims of arbitrary market forces and suffer the consequences of prices which reflect whatever the market will bear.

Critics emphasize the negative effect expanding rent control will have on housing development, as it eliminates financial incentives to build new housing or develop existing properties. Given the magnitude of the housing shortage at hand, ensuring renters remain where they are might not be the most pressing objective. Rent control creates immediate gains, but, as a Brookings Institute study concludes, “in the long run it decreases affordability, fuels gentrification, and creates negative spillovers on the surrounding neighborhood.” Reduced profit margins discourage landlords from regular maintenance, renters bunker down in apartments that are too big or small for their needs, and the neighborhood housing market is depressed.

There are no easy solutions. At best, the crisis in California is a cautionary tale that might signal when to raise the alarm, and, if we’re lucky, where to look to find a way out.