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Is Gov. Northam’s “A Floor, Not a Ceiling” Mantra Setting a Precedent? Could It Be Time to Free Up Virginia Localities From Judge Dillon’s Restrictive “Mother, May I?”Approach?

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Among Gov. Northam’s favorite metaphors these days is: “We’re not flipping a light switch from closed to open; when the time is right, we will turn a dimmer switch up just a notch.” He’s used that one many times to describe his approach to a cautious, gradual, phased-in “reopening” of Virginia’s economy.

Another one of Gov. Northam’s favorite metaphors, of late, to describe his “reopening” plans has been: “Phase one restrictions will be a floor, not a ceiling.” This one gets at the question of whether particular regions, such as Northern Virginia – but really, it could be any region – will be allowed to maintain *more stringent* restritions than the rest of the state as we enter “Phase 1,” or whether – as Gov. Northam had previously emphasized – “We closed as one commonwealth, and we will open as one commonwealth?”

It’s an interesting, and I’d argue important, question: should all parts of Virginia operate by the same rules, or do regional differences mean that having uniform standards might not make the most sense? In the case of “Phase 1” reopening, if one region’s allowed to open under one set of rules – let’s say, closer to the “floor” than the “ceiling,” while another region is right at the “floor,” while yet another region is a few feet about the “floor,” etc., does Virginia become a balkanized patchwork of rules? Does that lead to confusion and possibly other problems? Apparently, we’re going to find out in coming weeks, at least in the case of COVID-19, as Northern Virginia goes its own way to an extent, while other regions might or might not decide to do so as well.

Now, there are certainly arguments to be made for the “floor, not a ceiling” approach. The main argument is that different regions of Virginia really *do* demonstrate significant differences, such as – in the case of Northern Virginia relative to the rest of the Commonwealth – a higher percentage of positive COVID-19 test results, among other issues. Which is why Northern Virginia jurisdictions are asking that Gov. Northam implement his ” “Forward Virginia” reopening plan “for the region only once regional threshold metrics have been met.” Which makes sense, but…again, seems to contradict Gov. Northam’s previous goal of opening “as one commonwealth.”

The main point here isn’t whether it’s good or bad to allow one or more regions to operate differently than the rest of the Commonwealth in the case of COVID-19 “reopening,” but whether it sets an important precedent going forward, post-coronavirus (or even PRE-“post-coronavirus”). And it really gets at the strict – *overly* strict? – Dillon Rule, the so-called “Mother, may I?” approach, where localities aren’t permitted by their state “mother” to go above the ceiling *or* below the floor of what’s set by the General Assembly, but must ask for permission (“Mother, may I?”) from their masters in Richmond if they want to demonstrate any autonomy in a wide range of areas.

But if it’s going to be more of a “floor, not a ceiling” approach during the COVID-19 crisis, why not after the COVID-19 crisis is over (or even before it’s over)? Or is this crisis a “one-off”/outlier/aberration, with no Dillon-related implications for the future? One could argue that, but…why wouldn’t it have implications?  I mean, really, if regions can do a “floor, not a ceiling” approach NOW, during the COVID-19 crisis, why shouldn’t localities be able to do things like the following, as a general rule, during and/or after COVID-19 ends?

  • Enact more stringent – but not less stringent – climate and/or clean energy requirements, regulations, etc. than other areas, if they so desire?
  • Protect their green space, trees, streams, etc. more – but not less – if they want to do so?
  • Adopt a higher minimum wage – but not a lower one – than other parts of Virginia, if let’s say the cost of living is much higher in a particular region?
  • Adopt stronger – but not weaker – labor protections more generally?
  • Impose higher taxes – but not lower ones – than in other parts of Virginia, if let’s say a particular region wants and/or needs to raise more revenues for schools, education, transit, transitioning to clean energy, or whatever.
  • Put in place stricter gun regulations – but not less strict – than in other parts of Virginia.
  • Have more – but not less – expansive human rights protections.
  • etc.

This really gets at the arguments for and against loosening up the strict “Dillon Rule” we operate under, here in Virginia. As the National League of Cities explains:

“The Constitution of the United States does not mention local governments. Instead, the Tenth Amendment reserves authority-giving powers to the states. It is not surprising, then, that there is a great diversity in state-local relations between, as well as within, states…State constitutions vary in the level of power they grant to local governments. However, Dillon’s Rule states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred

The inflexibility of this system is the reason that many states began to adopt ‘home rule’ provisions in the early 1900s that conferred greater authority to their local governments. Home rule is a delegation of power from the state to its sub-units of governments (including counties, municipalities, towns or townships or villages). That power is limited to specific fields, and subject to constant judicial interpretation, but home rule creates local autonomy and limits the degree of state interference in local affairs.”

So…clearly, there are different ways of approaching the relationship between states and localities. And clearly, there are pros and cons to doing so. Personally, I’d favor giving more permission to localities to go “above and beyond” state standards in a variety of ways, particularly environmental protection and a few other areas. How about you? Should Gov. Northam’s “floor, not a ceiling” approach to COVID-19 “reopening” set a precedent or not, and if so, to what extent?