Legal Advocacy

NLC closely tracks cases that are in the federal court system and are regularly advised on cases before the Supreme Court through the Local Government Legal Center. NLC has also occasionally been involved in state court system cases if the legal issue is pertinent to local government interests and concerns our members in that jurisdiction.

There are many areas of Constitutional law that touch and impact local government interests. NLC works with the Local Government Legal Center to identify cases that have great impact on local government operations or that would threaten local governments’ ability to govern, such as through cases that could subject them to greater liability. NLC considers joining amicus briefs on individual cases based on the legal issue up for determination by the courts and less on the case specific facts, that may involve direct city activity or actors. On policy-specific matters, NLC references the National Municipal Policy as the guiding document for the priorities and positions of local governments

First Amendment/Free Speech

The First Amendment protects the rights of all people in the United States with freedom of speech. Speech includes “expressive conduct” such as distributing literature or protesting. Local governments cannot limit speech if it is protected by the Constitution. However, local governments in some circumstances can regulate the time, place, and manner of speech.  When and how a city can regulate speech often comes before the courts as cities, towns and villages implement rules and regulations for the health and safety of their communities.  For example, cases involving sign regulations or panhandling ordinances involve the regulation of speech. First Amendment cases also come before the courts on issues pertaining to public safety.  These types of cases include issues involving protests and allegations of retaliatory arrests. 

Due Process  
Due process clauses appear in both the Fifth and Fourteenth Amendments. These clauses work to ensure that no individual is deprived of “life, liberty, or property” without due process. Examples of where due process applies to issues of local government include planning/zoning, asset forfeiture, and housing evictions.   

Tenth Amendment/Federalism or Preemption  
The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Tenth Amendment establishes the fundamental principle of local control against federal preemption – that the government closest to the people is best suited to addressing local issues. Cases that come before the courts that preempt local control or threaten to take away local control are of critical importance to local governments. 

Land Use/Zoning/Property Law  
Local governments regularly engage in the process of zoning – providing for the allowable land uses within the municipality and issuing permits for the construction of buildings and structures.  Zoning is a quintessential local government issue and cases that threaten local control over land use and zoning, as well as fees associated with development, have an impact on local land use regulation.        

Taking Clause/Eminent Domain  
The Takings Clause of the Fifth Amendment provides that private property must not be taken for public use without just compensation. A taking may occur when a government regulation restricts the use of land, even if the government does not invade or occupy the land.  These cases often involve local land regulations.   

Second Amendment (firearms)  
The Second Amendment protects the right to keep and bear arms. The courts have ruled that the Second Amendment is an individual right and local governments are limited from infringing upon it. Cases where local governments have sought to regulate local firearm laws within their jurisdiction have come before the courts.  

Commerce Clause
The Commerce Clause most often impacts local governments via the “dormant commerce clause”, which can bar state and local actions that discriminate against or have dramatic economic effects on out of state commerce.  Cases involving the dormant commerce clause directly implicate federalism as they involve allegations that a local regulation should be barred due to the federal government’s supremacy over interstate commerce.  These cases can arise in the context of local taxes, bans on puppy mills, or even zoning regulations related to the storage of crude oil within the city.   

Employment Law 
In addition to providing programs and services to residents, cities, towns and villages are also all employers.  As such, cases that come before the courts that impact the ability of local governments to address employment regulations and human resources needs are of significant importance.  These cases can potentially result in expanded liability for local governments as employers.   

Elections/Voting
Local governments play a role in election administration and have a vested interest in upholding equitable voting rights and equitable access in local election administration. 

Section 1983 
Under 42 U.S.C. Section 1983, local governments may be liable for violations of federal statutory or constitutional law.  These cases often arise in the context of law enforcement but may be brought in other contexts as well where an individual can prove that a local government employee, acting under the color of state law, deprived them of their rights under the Constitution.  Local governments themselves can be liable for policies that violate an individual’s rights or patterns and practices that do so.  Cases involving Section 1983 can be very expensive for local governments and they also carry with them the ability to recover attorney’s fees against the local government which are also expensive.  In some cases, a defendant may be entitled to qualified immunity if they have not violated clearly established constitutional rights. This is an affirmative defense to liability under Section 1983 and helps limit some of the liability for local governments under the statute. 

To stay up to date with NLC’s legal advocacy efforts, sign up for the Federal Advocacy newsletter here. If you would like to learn more about the structure of the Legal Advisory Committee or to raise a case for awareness to NLC legal advocacy staff, please complete this form.

NLC works in collaboration with the Local Government Legal Center to provide both pre-term and post-term Supreme Court webinars. Recordings of past webinars are available to members on our website and invitations to future webinars will be sent via email communication.  You can sign up to receive these communications here. Regular blog posts summarizing cases and their impact on local government can also be found on CitiesSpeak.  NLC also regularly engages our Board of Directors and the State Municipal Leagues with updates on our legal advocacy efforts.