The Underlying Structure: A Conversation on Law with Gerald Frug

In 2010, we published an illuminating comparison of the governments of New York City and London. That analysis, by legal scholar Gerald Frug, probed the legal powers and limitations of both global cities and explained how New York City is structurally impeded from coordinating and implementing citywide and regional plans. The need for such authority has only become clearer in light of current challenges facing cities and regions, such as adapting to new climate realities, addressing the disparities in public education and health, financing infrastructure, or simply balancing the books.

In the conversation below, Frug, an avowed urbanist, contextualizes this argument in terms of why designers, planners, and activists would benefit from greater familiarity with the legal structures that both enable and constrain urban change. In so doing, he reflects on a career that has spanned from his direct experience with New York’s public sector during the Lindsay mayoral administration in the late ’60s and early ’70s to many years teaching local government law at Harvard Law School. His appeal to urbanists to increase their awareness of how the law helps to determine urban form is more than a needed dose of grounded realism. It is a passionate defense of the ideals of democracy, one that provides a sound basis for the reform of our urban, local governments and the physical, social, and cultural environments of cities.

C.S. 

The counties and municipalities of the New York metropolitan region

UO: One of the reasons I want to share your perspective with Urban Omnibus readers is that I don’t think urban enthusiasts often think about the law and how it figures in their work, whether that work is design or community planning or civic activism.
Gerald Frug: You’re right. People don’t think of the law as providing a background structure of life in a similar way to how the natural environment does. Just as with the natural environment, you can modify the background – you can tear things down and build them up – but the underlying structure is still there, guiding what is possible. People don’t tend to think of the law that way. Instead, the law is seen as an annoyance, as a system of “command and control” that stands in the way of a citizen and what he or she wants to accomplish, rather than a set of rules that organize activity.

What aspects of the law do you teach and write about?
My major course is called Local Government Law, which is about the legal rules that organize metropolitan areas, primarily in the United States. I focus on the relationships between cities, states, and central governments, the relationships between cities in the same metropolitan area, and the relationship between cities and their citizens. I also teach Contracts, an entry-level first-year course, and a seminar on Advanced Local Government Law. I write about these structural issues, and in recent years I’ve also spent time thinking about cities outside the United States in the same terms.

There has been a loss in the idea of democratic government, in the idea of public services being public.

How did you come to work on these issues?
I got into this because, many years ago, I worked for the City of New York. John Lindsay, of beloved memory, was Mayor of the City of New York from 1966 to 1973. During this time he reorganized 50 departments into ten “super-agencies,” one for all the various housing agencies, one for environment, one for health. I was the Deputy Administrator and eventually the Administrator of the Health Services Administration, which dealt with hospitals, mental health, health clinics, addiction services, the morgue.

How would you describe the political context of New York at that time?
The city was in bad shape – perhaps not quite as bad as we currently remember, but certainly New York is in better shape today. The Lindsay administration represented a progressive moment during which government pushed to get a lot of things done.

One of our responsibilities in the Health Services administration was setting up methadone maintenance clinics. As it turns out, people didn’t want a methadone clinic in their neighborhood. But no one wanted heroin addiction either. We had to figure out how to organize this issue, so that heroin addiction could be transformed into a medical problem that could be addressed in a clinic environment. This was also the moment in which New York had legalized abortion before the Supreme Court decided on Roe v. Wade. We set up a lot of clinics that were outside of the public hospital system. And we were responsible for 18 municipal hospitals that the City was transferring to a semi-autonomous public authority at the time.

When did these services come to be considered the responsibility of local government?
That’s a good question, because, for the most part, none of these services are the responsibility of local government outside of New York City. Many cities in the United States have no public hospitals, for example.

The City of New York has a legacy of progressive government, whereby the intensity of the city’s population makes certain problems so apparent as to create a desire to address them locally. New York City’s government is quite unlike any other city government in the US: it provides an enormous amount of services that other cities leave undone, or privatize, or let the state government take care of. But when I worked in city government in New York – and Lindsay was very much part of this tradition – it was assumed that the municipal government would take on problems for which it could be helpful. That was part of the idea of the city.

Schools, parks, sanitation, and hospitals are among the many public services handled by local government in New York City. | Clockwise from top left: Forest Hills High School, Madison Square Park Playground, a fleet of DSNY trucks, Bellevue Hospital Center; images courtesy of Brian, Manfred Lentz, Briyyz, and New York Health and Hospital Corporation

Broadly speaking, how would you say the discourse around what the role of city government should be in this country has shifted since then? What do we expect of city services now as opposed to what we expected of city services at that time in New York?
There’s a long tradition of thinking about government as solving general problems: we have schools in order to have an educated public; we have health and sanitation services in order to limit public exposure to disease. I think what has happened over the past few decades is a gradual reconceptualization of these services as meeting private needs: the schools are there so that my kid can go to school, but if I don’t have kids, why should I support schools? I want security for my neighborhood, but if there’s crime in another area of my town, that’s not my problem. There has been a loss in the idea of democratic government, in the idea of public services being public.

What does “public” mean to you, in that context?
In terms of services, I think of public as referring to the process of a democratically elected official allocating tax money to priorities. These priorities are for the elected officials’ constituents, but not exclusively. Parks, for example, are open to more than just the residents of the city that builds and maintains the park. Maintaining a public park isn’t free, but the costs are not borne by the park’s users, they are borne by the public at large. Such an expenditure used to be widely understood as a good thing for a city to do, along with sanitation, health, education, and countless other things. These days, people don’t seem to understand that, and instead are asking “What’s in it for me?”

People often fail to realize that state government mandates an enormous amount of city decision-making. Part of this shift has to do with the fact that we charge for a lot of things that used to be paid for by taxes, like public universities. We have started to think of taxes as a fee-for-service. A family will move to a small city because it has good schools, and that family conceives of the property tax as fees for those particular schools; you’re paying for the school your kid goes to, not for someone else’s education. And once your kid graduates from the local school system, you can move to a retirement community where you won’t feel like you are paying for schools you no longer need.

Here’s a thought experiment: imagine if the federal government financed schools but the local government supported the retired and elderly. In that scenario, localities wouldn’t encourage the elderly to move in, because that would cost the local government money. Currently, we have the opposite system: the elderly are supported by Social Security and schools are supported locally. That’s why many suburbs are shaping their development priorities to discourage families with kids, because they cost money, whereas the elderly are “free.” If you flip who’s paying for what in the background legal system, priorities change.

It’s not that people are against education or are against old people, for that matter. What people are against is paying money. And why is that? We’ve lost the idea that in a democratic society, we need to pay taxes. Over the past 30 years, middle-class incomes have stabilized to such an extent that there is very little give in anyone’s budget. In a democratic system, taxes seem more controllable than other expenses, because they are the only expense you can vote on. You can vote against bonds to improve schools. But you can’t vote on how much it costs to live. There’s no vote on your rent.

Organization chart of New York City government | Image via City of New York

Organization chart of New York City government | Image via City of New York

You’ve written recently that the attack on democratic governance isn’t only coming from the market-based arguments of the Right, but also from the bottom-up arguments of the Left. How so?
From the Right, the argument is to let the market take care of everything. Once you think of government as running on a fee-for-service model, then it makes sense to move government services to the private sector, which is entirely based on fee-for-service.

From the Left, the critique of government emerges from the romance with the idea of “community.” This idea views government as either irrelevant or a hindrance; it views our needs as best served by organizing ourselves as a community to achieve certain ends. It’s a retreat from the idea of government as a way to get things done.

Here’s an example. I’m currently involved in post-Sandy work, a federally funded task force called Rebuild by Design, run out of the Department of Housing and Urban Development (HUD). The planners involved in this effort consistently want to talk to “the community,” and I keep thinking, “Who is that?” It’s not the whole city, let alone the state. Most often, they are referring to people who live within the most affected areas. Well, in terms of figuring out how to protect the East Coast of the United States, the “community” is not going to decide what’s going to happen. In these conversations, the City and the State – which represent the crucial institutions with authority – are rarely mentioned; they wither away in the mind. From the Right, they wither away in the name of the market; from the Left, in the name of bottom-up activism. I’m all for bottom-up activism, and I’m all for community. But I’m in favor of linking these concepts to building a democratic society, one that is not independent of government, but connected to it.

Along the same lines, what do you find problematic about ideas like David Cameron’s “Big Society” or George H.W. Bush’s “Thousand Points of Light?”
The Thousand Points of Light and Big Society are references to the idea that volunteerism can address large social problems. I’m in favor of volunteering and informal groups and associations of all kinds, but not if it risks erasing democracy and government from the conversation. Democracy is an incredibly radical idea: one person, one vote. No one will question the idea that in a market society, the more money you have, the more stuff you can get. And volunteer organizations are based on the idea that people will associate and organize based on common beliefs or shared practices. Both concepts are quite different from the idea that each person in a particular area, regardless of other criteria, is entitled to a vote.

Shaun Donovan, the Secretary of the US Department of Housing and Urban Development, releases the Federal Hurricane Sandy Recovery Task Force Report. | Image via NYC Mayor's Office

Shaun Donovan, the Secretary of the US Department of Housing and Urban Development, releases the Federal Hurricane Sandy Recovery Task Force Report. | Image via NYC Mayor’s Office

Taking this post-Sandy work as an example, tell us why you think designers, urbanists, and others who deal with the physical environment of our cities need to care about the law?
People who care about cities and improving them need to understand the law if they want their ideas implemented. Whether the idea is a strategy to deal with beach erosion, or to put up a surge barrier, or to retrofit buildings to withstand floods, they will need to understand the series of rules that determine what’s permissible on a beach, how we control building construction, and to what extent property owners can be mandated to change their buildings.

I think of it like this: there is a natural environment that we understand as context you have to work within to make future storms more manageable. There is also a legal environment that you also have to work within, an environment that authorizes certain activities and forbids others. And “the community” is not a part of that legal environment; the people who live in a neighborhood are not a legal entity. They should be consulted, of course, and they should find ways to talk to the institutions that are legally authorized to make decisions, but they will not have the final word. A lot of what ends up happening will be decided by the national government, and a lot of it is going to be decided by the state government.

Besides “community,” another word I hear a lot in these conversations is “region.” The Sandy Region has been defined for me in this process in two ways: Rhode Island to Maryland and New York / New Jersey. But there is no regional decision-making of any kind in either of those areas. We have states, cities, counties, and public authorities of all kinds. There are 15 federal agencies involved in this effort. So we have plenty of actors, but the region is not one of them, and neither is the community.

The Metropolitan Transit Authority and Port Authority fall under New York State control. Roosevelt Island and Battery Park City are operated by a NY State corporation and authority, respectively. | Clockwise from top left: New York City Subway car, Port Authority Bus Terminal, Roosevelt Island Tram, Battery Park City; images courtesy of Kristin Wall, Wally Gobetz, The Eyes of NY, and saitowitz

The Metropolitan Transit Authority and Port Authority fall under New York State control. Roosevelt Island and Battery Park City are operated by a NY State corporation and authority, respectively. | Clockwise from top left: New York City Subway car, Port Authority Bus Terminal, Roosevelt Island Tram, Battery Park City; images courtesy of Kristin Wall, Wally Gobetz, The Eyes of NY, and saitowitz

Speaking of states, you argue in City Bound that state governments stifle the innovation of towns and cities. Can you outline that argument?
When things go wrong in a city, many people get mad at the mayor. What people often fail to realize is that state government mandates an enormous amount of city decision-making. Cities in the US can only do what the States allow them to do.

A famous recent example in New York is the inability of the City to impose a congestion charge for driving in midtown Manhattan during the workday. The proposal passed the City Council, but the State of New York did not authorize it. Recently, we’ve heard a lot of talk about how Chicago’s pensions are radically underfunded and could destroy city services, but state law established the pensions of Chicago’s municipal employees. The same is true of health benefits. There’s also a lot of talk these days about Detroit’s bankruptcy, but what divides depressed Detroit from its prosperous suburbs is a State-authorized rule system that defines which school district and tax district you’re in, divisions that have radical impacts on people’s lives. Even if Detroit ends up paying all of its bills, it won’t have begun to solve its problems as a city, which have a lot to do with the line between Detroit and what’s immediately beyond its borders.

Do you think city governments would come up with better solutions for these entrenched problems if they were authorized to do more?
Yes, I think city governments should be authorized to do more. But I also think that the concept of each city deciding on its own how to proceed is not working. Cities need to be authorized to do more in relationship to neighboring jurisdictions. I’m not for autonomous city decision-making. On the other hand, I’m not for powerless cities.

The City of Detroit and its suburbs

How could different municipalities in the same metropolitan area be legally encouraged to forge stronger links?
The first point is that currently, they are legally encouraged not to cooperate. State law has set up a very competitive environment for towns and cities, in the way it organizes taxation, zoning, how we define school districts, etc.

Given that states design how cities operate, states could set up a system in which cities would have more authority if they cooperate with their neighbors and less authority if they don’t. I’ve come up with various, detailed institutional ways for this to work, but the conceptual framework is to empower cities to work with their neighbors rather than against them.

In the suburbs of Detroit, many people think the City of Detroit’s finances are not their problem. And state law in Michigan permits these towns to disregard Detroit. Ultimately, Detroit’s prosperity will depend on other towns and cities in its metropolitan region. And the reverse is also true: the future of a region with a dying city at its center is not a happy one. Cities have very little control over their expenditures and very little control over their income. If you had very little control over those two things, and were therefore unable to match your expenditures to your income, you’d be just as broke as Detroit.

So, the kinds of revenue cities are able to control lead to certain kinds of development and governance priorities?
Yes. In Massachusetts, where I live, cities are exclusively dependent on the property tax. There is no local income tax, no local sales tax, and the property tax rate is fixed by state law. So, the City of Boston’s only source of income is tied to the value of property within its borders. The only way to raise revenue is to gentrify: to raise the value of the property. Our outgoing mayor, Thomas Menino, cares deeply about maintaining an affordable Boston and a middle-class Boston. But under the structure of finance that the State of Massachusetts has organized, he has no choice but to gentrify.

If there were a local income tax or a local sales tax, wouldn’t that dispose local governments to focus on attracting richer citizens or developing more retail?
Of course, if you rely on the sales tax exclusively, cities will want malls instead of housing. Finding the right mix is crucial. But your question implies thinking of each city on its own with its own income stream. Everyone who buys stuff pays sales tax, not just residents. And the same could true about income tax, depending on its structure. Property, however, is by definition located within a city’s borders.

A lot of cities spend a lot of energy attracting tourists. Tourists spend money, which is good for business. But it’s not good for the city, because without a sales tax, the city doesn’t benefit financially from tourist dollars. Sales tax spreads the source of revenue in a different way than the property tax, and income tax does so in a different way than the sales tax.

The broader point I’m making is that the organization of the tax system generates particular kinds of urban development, and the state organizes the tax systems for cities. People who care about cities would do well to understand the law and the structure of government if they want to create any kind of change.

 

Map graphics by Kaori Ogawa

Gerald Frug is the Louis D. Brandeis Professor of Law at Harvard Law School. Educated at the University of California at Berkeley and Harvard Law School, he worked as a Special Assistant to the Chairman of the Equal Employment Opportunity Commission, in Washington, DC, and as Health Services Administrator of the City of New York. In 1974 he began teaching at the University of Pennsylvania Law School, before joining the Harvard law faculty in 1981. Jerry’s specialty is local government law. He has published dozens of articles on the topic and is the author, among other works, of City Making: Building Communities without Building Walls (1999), and City Bound: How States Stifle Urban Innovation(with David Barron, 2008).



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