Subsidiarity Municipalism in Action: On Vincent v. Adams

Gregory E. Louis* February, 2026

Abstract

Building on the author’s recent article Protecting Commoners’ Goods: Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism (PCG), this Essay deconstructs the recent New York appellate opinion in Vincent v. Adams. That case reverses a trial court opinion that PCG criticizes as an example of how current law misunderstands the proper relationship between local government and federal and state authorities. This Essay uses the appellate court decision in Vincent v. Adams to reinforce PCG’s thesis of subsidiarity municipalism, to offer another illustration of subsidiarity municipalism’s progressive potential, and to suggest how subsidiarity municipalism can inform the relationship between state and local bodies on budgetary questions.

Introduction

The following Essay uses a recent New York appellate decision about a local housing subsidy law¹ as a vehicle for promoting the thesis of my recent article Protecting Commoners’ Goods (“PCG”).² The New York Appellate Division, First Department’s unanimous opinion in Vincent v. Adams reverses a trial court decision that PCG criticizes as an example of how the law misunderstands the proper relationship between local government and federal and state authorities.³ As law professor rantings seldom receive immediate real-world validation, I must seize this fortuitous opportunity to further PCG’s argument of subsidiarity municipalism’s progressive possibilities. This Essay does so in three additional sections.

Section II sets the stage of the appeal, identifying its aspects most relevant to my recent Article and its theory. Section III explains, in three subparts, how the New York Appellate Division, First Department’s opinion furthers subsidiarity municipalism. Subpart A provides a summary of subsidiarity municipalism, which PCG frames as the constitutionalism produced when the classical legal tradition’s principle of subsidiarity is applied to the U.S. constitutional structure. In a nutshell, subsidiarity municipalism contends that the application of the classical legal tradition to resolve constitutional disputes results in the empowerment of local government to broadly exercise power in a manner unique to those communities for the benefit of people resident, things situated, and phenomena solely occurring within those communities.⁴ As a result, regulation through local government becomes the primary vehicle for achieving progressive outcomes.⁵ Subpart B acknowledges that the Vincent opinion can be read without recourse to subsidiarity municipalism, conceding two elements of the case to which subsidiarity is irrelevant. Subpart C elaborates how, despite these two elements, the opinion furthers the notion that the common law Anglo-American legal tradition contains a strong principle of subsidiarity and that this principle can readily produce progressive outcomes. Section IV concludes with some thoughts on how subsidiarity municipalism may inform the next phases of the dispute — not only further appeal, but also the negotiation between state and city on approval and implementation. For, as argued in PCG,⁶ resolving disputes through subsidiarity municipalism can better secure progressive outcomes by aligning social inclusion with the pluralistic U.S. constitutional design that the Ninth and Tenth Amendments signify, rather than by seeking to universalize progressivism through that imposition and conquest which appear to have provoked the Right’s emerging legal nihilism.⁷ To that end, subsidiarity municipalism offers a strategy for progressives imagining the construction of anti-domination institutions in response to the Trump administration:⁸ the use of the City as a shield.

**Setting the Scene: What Vincent v. Adams is About**

This Essay’s case study concerns the legality of New York City Local Laws 99, 100, 101, and 102 of 2023.

To address a homelessness crisis exacerbated by the arrival of migrants during the Biden administration,⁹ the New York City Council passed four bills to reform a local housing voucher program. The voucher program, known as the City Fighting Homelessness and Eviction Prevention Supplement (“CityFHEPS”), provides direct payment rental assistance to low-and-moderate income families threatened with homelessness; it is modelled after the federal Section 8 Housing Choice Voucher program.¹⁰ Officially, the program functions as a local supplement to the state shelter allowance that New York provides as part of public assistance administered under state supervision.¹¹ As originally enacted in 2018, CityFHEPS aimed to streamline a hodgepodge of City rental assistance programs meant to address the City’s longstanding family homelessness crisis stemming from a rental market unaffordable to many residents.¹² This problem was brought to the fore by late 1980s and early 1990s Jiggetts litigation.¹³

The New York City Council passed Local Laws 99 through 102 to change the original CityFHEPS program in several ways. Specifically, the laws (i) increased the CityFHEPS income eligibility threshold, allowing the program to serve more residents; (ii) eliminated the program requirement that recipient families be in a shelter for ninety days before becoming subsidy eligible; (iii) eliminated work requirements for recipient families; (iv) expanded the types of situations eligible for the voucher, allowing any household at eviction risk to be eligible rather than only certain populations or housing situations; and (v) prohibited the local social services department from deducting a utility allowance from the maximum rental allowance for a CityFHEPS voucher.¹⁴ On May 25, 2023, the City Council, a unicameral legislature made up of fifty-one members,¹⁵ passed the bills by a vote of forty-one to seven.¹⁶

On June 23, 2024, former New York City Mayor Eric Adams vetoed the local laws.¹⁷ His veto message¹⁸ and a contemporaneous press release explained that he rejected the bills because of CityFHEPS’ high cost, the ease with which residents could access the benefit, and the laws’ failure to address the problem of housing supply by overlooking decades of exclusionary zoning practices claimed to have prevented the construction of adequate supply.¹⁹

Shortly after the Mayor’s veto, the New York City Council’s Committee on General Welfare (the “GW Committee”) met and voted to recommend that the City Council override the mayoral veto and enact the local laws. The GW Committee’s report for the override recommendation stated that the City Council passed Local Laws 99 through 102 to address the City’s homelessness crisis at a time when the number of unhoused people exceeded 100,000.²⁰ The report further stated that the Council had decided on housing vouchers as the solution to the crisis based on national research identifying vouchers as a highly effective tool to address homelessness and prevent the harms it causes adults and children.²¹ It also noted that, in view of City’s legal obligation to provide shelter to all unhoused people,²² a homelessness crisis exacerbated by the arrival of migrants, and recent data showing that half of City residents were considered rent burdened,²³ enhancing the CityFHEPS voucher system represented a sound course of action that would save the City $5.6 billion in diverted shelter, rehousing, and eviction prevention costs.²⁴

After the GW Committee passed the override measure, the City Council voted to override Mayor Adams’ veto by a vote of forty-two to eight.²⁵ Mayor Adams issued another statement reiterating the same basic concern and argument that his veto statement and contemporaneous press release articulated.²⁶ The Adams administration then largely failed to implement the laws,²⁷ citing the same concerns as those invoked in vetoing them in a letter from the local social services commissioner, dated December 15, 2023 and sent to the GW Committee.²⁸ Following the sending of this letter, a group of individuals and families who would be eligible for enhanced CityFHEPS vouchers filed a class action lawsuit against Mayor Adams and the City of New York.²⁹ The class action lawsuit was a New York special proceeding, a type of case that can be brought to compel a body or officer to perform a legal duty.³⁰ Here, the claimed legal duty was the Mayor’s obligation as the City’s chief executive officer to implement the laws.³¹ The New York City Council then sought and received permission to intervene in the proceeding as petitioners, seeking the same order directing Mayor Adams to implement the laws or, alternatively, a declaration upholding those laws’ validity.³²

Mayor Adams opposed the lawsuit on the basis that Local Laws 99 through 102 were preempted by the New York State Social Services Law’s extensive and comprehensive regulation of public assistance.³³ Mayor Adams further argued that, to the extent the New York Social Services Law gives local social service districts a role in public assistance policymaking, that role can exclusively be exercised by the New York City Department of Social Services, an agency under Mayoral control, and not the New York City Council, the City’s legislative body.³⁴

By decision and order dated August 2, 2024, the trial court dismissed the lawsuit, agreeing with Mayor Adams that Local Laws 99 through 102 were barred by the doctrine of field preemption.³⁵ The trial court also agreed with Mayor Adams’ argument that, as an apparent exception to the field preemption point, the only local body allowed to exercise a policymaking role is the City agency under his control, not the New York City Council.³⁶ The CityFHEPS beneficiary class and the New York City Council then appealed to an intermediate appellate court—the New York Supreme Court Appellate Division, First Department (“First Department”).

Joined in their appeal by seven New York City-based housing and advocacy organizations as amici curiae,³⁷ the CityFHEPS beneficiary class and the New York City Council argued that New York state law does not preempt local public assistance regulation and that the New York City Council, and not just the mayoral agency, has a role in such local regulation.³⁸ In an opinion dated July 10, 2025, the First Department agreed with the appellants, concluding that the New York Social Services Law and the implementing regulations create a scheme where both the state and city governments have a symbiotic though unequal relationship in administering public assistance. The court’s opinion elaborated that relationship as one where local bodies, including the City Counsel, are constrained by State oversight but enjoy a role in the provision of rental assistance.³⁹

**How Vincent Exemplifies Subsidiarity Municipalism**

This Essay now turns to explaining how the First Department’s Vincent opinion advances my recent article’s thesis of subsidiarity municipalism and its progressive potential. It does so in three subparts. The first summarizes subsidiarity municipalism, distilling the argument elaborated in my recent article. The second identifies and concedes that two elements central to the First Department’s conclusion in Vincent can be accounted for without subsidiarity municipalism. The third explains why, despite those two elements, the decision is better understood through the lens of subsidiarity municipalism, based on the New York Social Services Law’s legal genealogy and the neat fit between the decision and my recent article’s subsidiarity municipalism framework.

What Is Subsidiarity Municipalism?

PCG expounds subsidiarity municipalism as how Adrian Vermeule’s common good constitutionalism (CGC)—what he frames as the revival of the classical legal tradition in U.S. legal thought⁴⁰—applies to U.S. Constitutionalism. By classical legal tradition, Vermeule means an understanding of law that synthesizes Roman, canon, and local civil law by positing that government possesses broad power to rationally advance the common good of a polity.⁴¹ Under this understanding, the law includes both the notion of legal justice in its staggering breadth and specific legal enactments, with the former serving as the source and benchmark of the latter.⁴² In contrast to more contemporary accounts of the law such as legal positivism, progressivism, and originalism, the classical legal tradition denies that the law is limited to or exhausted by specific legal enactments and affirms the existence of an irreducible natural law that serves as the measure of legal enactments.⁴³

PCG engages this understanding of the law to argue that, in applying the entire classical legal tradition to the interpretation of U.S. law, CGC excavates the principle of subsidiarity and elevates it to the status of a standard for resolution of legal disputes about local government’s authority.⁴⁴ PGC does so because subsidiarity is foundational to the classical legal tradition’s orientation toward peace and order and its pragmatic understanding of law.⁴⁵ These characteristics point to a practice of localism, the scale at which broad principles of law can produce peace and order since that is the scale where ordinary human life occurs.⁴⁶ The argument is that a polity genuinely committed to the common good regulates with deference to authorities closest to the people who are regulated.⁴⁷ Subsidiarity municipalism acknowledges that higher, more removed bodies—states and the federal government within the U.S. polity—have a legitimate and essential role in local government. Their superintendence is what makes local government possible in the same way that a local parish presupposes a universal church by and through which it stands as a church.⁴⁸ But this role complements that which local government plays: higher, remote bodies regulate local affairs to produce vertical and horizontal harmonies, whereas more local and proximate bodies are better suited to addressing intramural matters based on the competence proximity affords.⁴⁹ To achieve this balance between localism and higher bodies’ proper role in securing local communities, subsidiarity municipalism posits five principles, summarized and applied to Vincent below in Section III.C. The five principles essentially recognize a constitutional right to local government for the things for which local government exists: the common good of people resident, things situated, and phenomena solely occurring within a specific community.

Subsidiarity municipalism thus produces the same outcome as the imperium urbis canon of interpretation for which a 2023 Harvard Law Review note advocates: a judicial presumption in favor of local government.⁵⁰ But it differs in being rooted in the Western legal tradition’s general understanding of humanity rather than the imperium urbis canon’s particularly American bases in popular sovereignty and the post-Civil War home rule movement.⁵¹ As such, subsidiarity municipalism stands more solidly as a principle of constitutionalism in contrast to the imperium urbis canon’s status as a policy which can be overcome by clear statutory language.⁵²

Two Concessions About Vincent

With subsidiarity municipalism having been explained, this Essay must now acknowledge that the First Department’s Vincent opinion can be read without any need for this subsidiarity municipalism business. Two elements of the opinion stand out in this regard.

First, the opinion reflects ordinary statutory analysis. The First Department placed great emphasis on the text of both the New York Social Services Law and a state regulation that supported the City Council’s right to enact New York City Local Laws 99 through 102. The opinion arrives at its conclusion upholding the law after walking through the Social Services Law’s definition of a social service district,⁵³ the scheme’s provision on social service districts’ responsibility for the assistance and care of any needy person found within their territory,⁵⁴ and the text of a state regulation implementing the Social Services Law that permits local social service districts, with State approval, to offer additional monthly shelter supplements to families who will reside in private housing.⁵⁵ These texts also informed the court’s rejection of the Mayor’s proposed construction that would find all local control preempted except that exercised by the executive through the local social services department.⁵⁶

Buttressing the statutory point, the First Department did not address the appealing class’s argument that the City Council had the inherent authority, under the New York State Constitution’s Home Rule provision, the State Municipal Home Rule Law, and the New York City Charter, to enact legislation consistent with the state law for “the ‘government, protection, order, conduct, safety, health, and well-being of persons or property therein.’”⁵⁷ “None of that constitutional stuff is even mentioned in the court’s opinion. At most, the opinion merely notes Appellant City Council’s argument that it enjoys a “policy-making privilege inherent in enacting local legislation that the executive branch is compelled to implement.”⁵⁸ But it does not evaluate the claim.

Second, the dispute is really a conflict between two local bodies: a municipal legislature and a municipal executive. Section IV of the Essay will say more about this aspect, specifically the key issue, left open by the opinion, of how the CityFHEPS laws are to be implemented. For now, it suffices to point out that the local executive, Mayor Adams, invoked state preemption to get around the local legislature’s veto override. The Mayor’s field preemption argument was not particularly principled: it conveniently found a local role in the comprehensively state-regulated scheme solely for the local executive.⁵⁹ So, Vincent is really a lawsuit used as the arena for working out a policy dispute between coequal branches of a municipal polity.⁶⁰ There are many things to say about this, including points about whether these even are issues for courts.⁶¹ Whatever can be said, intramural squabbling is not a subsidiarity question. For, as stated above in Section III.A, subsidiarity is about the relationship between higher and more proximate spheres of government.

Vincent’s Subsidiarity Municipalism Core

Despite the elements conceded above, this Essay submits that the First Department’s opinion furthers subsidiarity municipalism and its progressive potential. This is so because the scheme at issue, the New York Social Services Law, implies two layers of Anglo-American constitutionalism, bringing up the classical tradition and its subsidiarity principle. In addition, the Court’s analysis neatly fits the subsidiarity municipalism analytical framework that PCG posits.

On the first point, the New York Social Services Law’s background suggests that it can only be understood as an expression of both state and Anglo-American constitutionalism favorable to subsidiarity. At the state level, the New York Social Services Law fleshes out Article XVII, Section 1 of the New York State Constitution, which enshrines welfare as a state duty.⁶² Since the relevant state constitutional provision declares that the provision of care to the needy is a state duty, and since the New York Social Services Law declares that it must be carried out locally, it follows that at least this provision of the state constitution, supplemented by the legislation implementing it, enshrines subsidiarity.⁶³ The aspects of the scheme evincing state control or standardization only reinforce subsidiarity when more legal history informs the analysis, history discussed in both Respondent Mayor Adams and the Appellant City Council’s briefs.⁶⁴ In the 1920s, such centralization was added to the statutory scheme to remedy certain counties’ failure to administer public assistance,⁶⁵ in derogation of the Anglo-American tradition elaborated next. This failure prompted the state, a higher polity, to step in and coordinate during such a state of exception, consistent with the higher polity’s proper role under subsidiarity.⁶⁶ This Essay revisits and develops such a proper role in Section IV. For now, the historical context indicates that centralization reflects subsidiarity and the robust common law tradition, one also reflected in the reference to localities in the text of New York State’s 1938 constitutional enshrinement of the public assistance duty.⁶⁷

As alluded to in the foregoing paragraph, the history also implies a second constitutional layer particular to the subject matter of welfare: what PCG describes as the Anglo-American legal tradition’s public assistance model going back to the Elizabethan Poor Relief System.⁶⁸ To summarize the Elizabethan system, it adapted to the secular polity,⁶⁹ following the Church of England’s establishment, the longstanding practice of local poor relief formerly administered by ecclesiastical officials under the Roman Catholic Church’s jurisdiction.⁷⁰ So, the Elizabethan Poor Relief system simply revised past practice by establishing a civil legal duty for secular municipal bodies out of what had been a social, moral, and canonical legal duty for bodies formerly in communion with the Roman Catholic Church.⁷¹ That duty’s substance did not change: it remained to care for one’s needy neighbor.⁷² Nor did local administration end the notion that relief should be tied to residency.⁷³ These connections point to the New York State Constitution implying the entire Anglo-American poor relief tradition⁷⁴ in the same way that Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, implies the Anglo-American tradition of charity in following the 1601 Elizabethan Statute of Charitable Uses.⁷⁵

Although subsidiarity seems particular to the welfare context, the genealogy of the New York Social Services Law hints at a broader point PCG claims of the entire Anglo-American legal tradition.⁷⁶ It is beyond the scope of this Essay to undertake this demonstration, but one suspects that examination of the classical law background to any contemporary statutory scheme⁷⁷ will reveal some practice or supposition of subsidiarity. It is likely that study of them will lead to evidence of failures or gaps in local enforcement that encouraged a higher body to infill. This is PCG’s hypothesis in engaging Adrian Vermeule and Conor Casey’s genealogy of the common law system and its Roman roots toward excavating local government’s authority to regulate in service of commoners.⁷⁸

The double constitutional layers implied by the New York Social Services Law also get to my second point. The Vincent opinion neatly fits the subsidiarity municipalism analytical framework that my recent article posits.⁷⁹ The specifics of that framework are better left to that article. Here, I briefly cover the essentials. PCG suggests that CGC leads U.S. courts to uphold local government’s regulation where it meets five principles: (1) that it reflects the right to municipal government based on local government’s proper and unique role in regulating proximity such as people resident, things situated, and phenomena occurring solely within municipal limits;⁸⁰ (2) that it satisfies a narrow test of field preemption that upholds local regulation so long as it is confined to local affairs;⁸¹ (3) that it evinces specificity as a formal requirement, meaning that the regulation is based on findings of fact about a local community’s specific regulatory circumstances;⁸² (4) that it satisfies Cooley’s rule for interpreting municipal authority, which presumes that localities have the inherent right to regulate local affairs rather than requiring state delegations of local power to do so;⁸³ and (5) generality as a standard for interpreting higher orders’ powers, meaning that even verbose, detailed state regulatory schemes are understood as default standards or norms readily adaptable to local circumstances.⁸⁴ Below, the Essay elaborates how the Vincent opinion reflects each principle.

The Right to Municipal Government. The dispute in Vincent does not involve an attack on municipalism as such, certainly not along the lines of what PCG anticipates should progressive uses of municipal power catch on.⁸⁵ But because Mayor Adams squarely challenged whether a local legislative body had the power to regulate rental assistance in a scheme marked by state control,⁸⁶ the outcome reinforces the right to local government. This aspect is best appreciated by comparing the trial court’s opinion to the First Department’s. Citing a 1978 opinion of New York’s highest court asserting that public assistance is a state program administered by local officials who are state agents, the trial court concluded that the scheme “does not provide a role for local legislation in the administration of social services programs.”⁸⁷ The First Department lays out the entire scheme ostensibly proving the trial court’s point, even acknowledging that the state has the right to reject, in whole or in part, any local policymaking that a local government submits for approval.⁸⁸ Still, it locates the power of local input even in such a scheme and goes on to describe the relationship between state and locality as a symbiotic relationship of collaboration subject to state coordination.⁸⁹ In such a relationship, the opinion finds material local input encompassed in a local government’s ability to propose local solutions to local conditions.⁹⁰ In so finding, the First Department’s opinion elevates local government to a vital role in governance even as it operates within prevailing constrains of U.S. Constitutionalism where, as the trial court found, local government is wholly subordinate to the state.⁹¹ Tellingly, the First Department’s opinion recognizes the subordination but does not, as the trial court had, dismiss local government as a mere instrumentality of the state. It breaks ground toward subsidiarity by finding even the power to make proposals significant enough to enshrine local government as a right.

Presumption in Favor of Municipal Regulation. The aspects covered above in the analysis of the first characteristic also come through on this second characteristic, one that largely has to do with field and conflict preemption analysis.⁹² Subsidiarity shines through the First Department’s preemption analysis. In concluding that, despite how comprehensively the state regulates public assistance and how firmly the social services scheme subordinates localities, the scheme does not preempt local policymaking,⁹³ the First Department strengthens the presumption in favor of local government on local affairs. It does so by narrowing the preemption doctrines by requiring a state to completely occupy a field or to unequivocally assert that the matter is solely for state regulation, leaving nothing for localities, rather than recognizing preemption from a state comprehensive and detailed regulatory scheme.⁹⁴ As illustrated by the above New York Social Services Law genealogy, it is hard to imagine many areas that have no local aspect such that there would be no history, practice, or supposition of local regulation. Thus, the First Department’s move with its analysis of the Social Services Law is promising for the future.

Specificity as a Formal Requirement. This characteristic subtly appears in Vincent and reinforces the importance of factually driven local regulation. In rejecting preemption based on its construction of the social services scheme, the First Department found that the scheme invited local problem-solving innovations tailored to local needs. The language of tailoring suggests that the validity of Local Laws 99 through 102 turns on the factual conditions found by the GW Committee’s report and even more specifically grounded in the amici curiae’s brief.⁹⁵ As framed by the First Department, “the reform laws were prompted by three conditions faced by the City: the rising number of evictions of residential tenants, a dramatic increase in the rate of homelessness, and an overburdened shelter system.”⁹⁶ The role that local government plays in the scheme requires sedulous adherence to its remit of regulating local matters; it is not some power to make universal pronouncements on general social problems from the pulpit of New York City Hall. Based on its framing of the City’s role within the rental assistance scheme, the First Department’s upholding of the CityFHEPS reforms emanates from local conditions.

Cooley’s Rule as the Standard for Interpreting Municipal Authority. Operating within the prevailing understanding of the law, the Vincent opinion does not go so far as to suggest that the City has an inherent right to policymaking independent of any state law delegations. It does not clearly engage the Appellant City Council’s contention that, as the City’s legislature, it has a policymaking privilege inherent in enacting local legislation.⁹⁷ But the Vincent opinion takes a robust view of local government that shares the premises of Cooley’s rule that local government is most competent to speak on local matters.⁹⁸ To again return to the section addressing whether rental assistance suggests field occupation, the opinion locates in the scheme a right to local input on rental assistance policy that is then reinforced by its home-rule prerogatives under the New York State Constitution and Municipal Home Rule law “to have a say in matters pertaining to the health and well-being of its citizens.”⁹⁹ As mentioned above, it is striking that the First Department found this in a scheme that involves a great deal of state control—including the state commissioner’s powers laid out by the opinion¹⁰⁰—and that merely gives localities a right to propose solutions that the state may refuse, as the court also admits.¹⁰¹ For the court to find so robust a role for local government in such a scheme suggests that it strongly believes, as suggested above, that local government has a normative role in regulating matters affecting its citizens. To reiterate the point mentioned above, it is hard to conceive of a context where local government would not have at least so comparable a role.

Generality as a Standard for Interpreting Higher Orders’ Power. In the First Department’s opinion, this characteristic is the most prominent of the five. To reiterate a point covered above, the court’s conclusion on why Local Laws 99 through 102 are not preempted construes the scheme as one inviting local problem-solving innovations. Since New York’s Social Services Law is a quintessential, verbose and detailed scheme, covering a great deal of the public assistance field, the court’s interpretation epitomizes a subsidiarity view of state policymaking. As such, it not only illustrates that PCG argument but also another point about what legitimate local variation looks like in view of higher bodies’ general principles. As also discussed above, the New York Social Services Law is detailed and centralized to establish a baseline of public assistance as a duty, consistent with the State constitution and Anglo-American tradition.¹⁰² As Appellant New York City Council mentioned in its brief, the state assumed a role in coordinating public assistance toward ensuring that localities fulfil their duties to needy residents.¹⁰³ To illustrate the problem of local recalcitrance, the 1978 precedent that the trial court decision cites to argue that localities have no policymaking role in the scheme¹⁰⁴ involved a locality seeking to avoid an administrative determination that they must provide public assistance to a child who had moved into the county from Massachusetts.¹⁰⁵ Where a higher body has set a baseline standard—a polity committed to providing for the needy—a locality can perhaps tailor it by defining who is needy within its community or which needs are a priority. But where a higher body has established a baseline, the locality cannot ignore it by, for example, simply declining to help people whom it has determined are needy.¹⁰⁶

So, Vincent also illustrates the sort of local variation that PCG allows: any consistent with higher bodies’ more general regulation of a polity. Unlike in the 1978 case, in enacting the CityFHEPS reform, New York City’s local legislature was not trying to evade the polity’s fundamental values enshrined in its constitution. Rather, its policymaking applied a general standard to the City’s specific circumstances, focusing on its unique problems. This is what makes subsidiarity municipalism a genuine exercise in CGC, not a license for anarchy.¹⁰⁷

In sum, subsidiarity municipalism best accounts for how the First Department found a role for local problem-solving innovation and meaningful local input even in a scheme where the state commissioner determines public assistance policy and principles for the state and local government, makes these policies known to all, exercises general supervision of all local welfare work, and establishes public assistance administrative regulations both for the state and local government units and where the state department supervises and advises all state and local public assistance.¹⁰⁸

Conclusion: Subsidiarity Municipalism & the Way Forward

No matter how the dispute in Vincent progresses—whether to a further appeal¹⁰⁹ or to the phases of state approval and implementation, the lattermost issue left open by the opinion¹¹⁰—principles of subsidiarity municipalism inform its ultimate resolution. This Essay concludes by considering two aspects: its amenability to progressive outcomes and the narrow, tutelary role of higher orders.

Subsidiarity Municipalism’s Amenability to Progressive Outcomes

First, Vincent illustrates how CGC—the vigorous exercise of government power for citizens’ welfare¹¹¹—is readily amenable to progressive outcomes, as PCG claims.¹¹² This brings us back to the point noted above about the intramural dispute,¹¹³ or how the case pits a local executive against a local legislature. Distilled to its essence, the dispute is a power struggle about how to address the social problem of housing precarity.¹¹⁴ This problem is especially acute in New York City given its controverted duty to provide some shelter.¹¹⁵ As review of the statements referenced above indicate, both sides acknowledged this problem.¹¹⁶ Their disagreement was about how to address the problem. The local legislature’s solution was to increase the amount of shelter subsidies based on findings in the GW Committee report summarized above¹¹⁷ that identified the problem as an unaffordable rental market. So, the Council addressed the problem by helping families access a greater segment of New York City’s notoriously expensive market. If one also includes local legislation prohibiting landlords from refusing rental subsidies,¹¹⁸ the local legislature’s solution to the market problem represented a carrot (deeper subsidies) and stick (law enforcement) approach to helping unhoused families access housing by regulating supply (landlords).

By contrast, the local executive’s solution focused on market dynamics such as increasing housing supply so that it could operate to increase the number of affordable housing units without the need for more government subsidy.¹¹⁹ The administration’s approach, coupled with its other statements, suggest a preference for a solution conventionally friendlier to landlords and other business interests, with less reliance on the public fisc and the need for tax revenue.¹²⁰ As with any solution vigorously wedded to market orthodoxy, it must also be mentioned that the Mayor’s administration also would address housing precarity by reducing demand through encouraging poor people to go away, whether by making shelter conditions spartan or by challenging the City’s obligations.¹²¹

The progressive outcome represented by Local Laws 99 through 102 results from CGC’s breadth. In the vein of CGC’s rational arbitrariness,¹²² the New York City Council’s proposed solution is just as legitimate as the Mayor’s, for someone, whether property owners or unhoused families, must bear the burden of the market’s inability to provide housing. The law admits no clear preference among the myriad of potential solutions to the intractable problem of poverty.¹²³ So, from the standpoint of the common good tradition, a judge cannot resolve any dispute about which solution is more fair because the fairness operates at a high level of generality.¹²⁴ The takeaway lesson is that such a question is better resolved by other rule of law mechanisms aside from the judiciary, as Adrian Vermeule has elsewhere insisted.¹²⁵ One such mechanism is the ordinary interplay between various elected bodies within a republican polity. Since, in its great pluralism, CGC admits many institutional and legal arrangements,¹²⁶ a general legal question can be resolved by deference to a supermajority of the City’s 51 council districts¹²⁷ rather than to a single individual elected by the entire electorate. Such a legal principle would municipally apply the institutional mechanism that, for some, renders the U.S. president’s election by majority of the electoral college, rather than by the popular vote tally, a more legitimate basis for a broad mandate.¹²⁸ The mandate that comes from legitimacy serves to move disputes away from debates about the policy and toward the practical question of how any given policy can be paid for, the proper forum of which debate is the annual budgetary tussle between executives and legislatures.¹²⁹ This brings us to the issues of state approval and cost.

Subsidiarity Municipalism’s Recognition of Higher Bodies’ Function to Safeguard Local Communities

Here, discussions of state approval and cost are combined because the two issues bring up subsidiarity municipalism’s other side: higher, mediating bodies’ proper roles in safeguarding municipalities.¹³⁰ Reflection on the role proceeds from the Adams administration’s preemption argument. The mayor’s argument largely flows from the Social Services Law’s requirement that the state supervise everything and that it also approve municipalities’ rental supplements.¹³¹ Eliding the scheme’s textual specifics, the administration’s argument was that the breadth and scope of state superintendence and oversight prevents a municipality, except the mayor as head of the local social services agency, from pursuing its own policy.¹³² Framed differently, the Adams administration’s argument was that the scheme gave the state so much involvement in public assistance policy that it must also be understood to vest the state with supreme policy discretion to select whichever solution it prefers. And if the state enjoyed ultimate discretion on policy questions such as the types and amounts of public assistance, local input on such did not exist as meaningless. The First Department’s response that the scheme still gave localities a meaningful role as collaborators with state coordination,¹³³ and that the local legislature also had a say in how a locality can fulfill its duty to care for its poor on types and amounts of assistance,¹³⁴ points to its significantly narrower understanding of broad state authority informed by the subsidiarity. That view, informing these next phases, is a tutelary understanding of state power that is exercised to ensure that a municipality can in fact carry out its policy determinations in two respects. Let us elaborate each respect.

The first respect is to ensure that municipal policy complies with any limitations imposed by the federal government, the ultimate source of the revenue paying for City public assistance. To elaborate, since social welfare funding ultimately comes from the federal government, passing through the state as an administrator, and because federal funding comes with conditions, the state’s first role is to make sure that local laws do not trip any wires. These include the so-called work requirement placed in the revision of federal public assistance in 1997¹³⁵ and reflected in the regulatory text in its allusion to “self-sufficiency.”¹³⁶ The standards of the state regulation requiring state approval of local rental assistance supplements reflect this role.¹³⁷

The second respect is to exercise state review toward protecting New York City residents from a soft corruption inherent in democratically elected republics. A longstanding problem is that, given how few voters participate in local elections,¹³⁸ the electorate receives government unresponsive to identified social needs.¹³⁹ Lingering in the concern about unresponsiveness is the perpetual worry that local elected officials largely unaccountable to the common good may enact legislation serving the few special interests who vote or that is personally expedient.¹⁴⁰ These officials may trade legislation appealing to a few for positions paying eight years’ worth of six-figure salaries.¹⁴¹ In addition to the subsidiarity municipalism framework and its requirements of regulatory facticity and specificity discussed in PCG,¹⁴² sound republican polities should contain institutional mechanisms for protecting citizens in such states of exception.

Lest this remain an abstract concern, Kim Phillips-Fein’s superb political history of New York City’s 1975 fiscal crisis¹⁴³ illustrates this problem. The fiscal crisis that brought New York City to bankruptcy’s edge was the product of the City spending more, principally on benefits and wages, than it generated in tax revenue.¹⁴⁴ Demographic shifts during the preceding decade created this circumstance, as households with higher wages serving as the tax base moved out of the City and were replaced with low-wage individuals requiring public assistance.¹⁴⁵ Elected officials who knew of this reality and the fiscal problem it presented, including executives such as trained accountant and City Comptroller turned Mayor Abraham Beame, nonetheless continued to authorize spending unsupported by the City budget by taking on debt.¹⁴⁶ They did so because politics dictated that they take the more palatable course of preserving jobs and services over other options such as cutting spending or seeking state authority that would never come.¹⁴⁷ This irresponsibility produced a state of exception: New York City being on the brink of bankruptcy.¹⁴⁸ In response, the State established and imposed institutional mechanisms such as the Municipal Assistance Corporation (MAC), a state-created public benefit corporation that marketed City municipal bonds by redirecting City tax revenue and the Emergency Financial Control Board (EFCB), which granted the State extraordinary veto powers over City spending.¹⁴⁹ It would be remiss of this Essay to omit that this EFCB exceeded its CGC role by exercising discretion arbitrarily, favoring the interests of elites over citizens on the whole, untethered to electoral legitimacy.¹⁵⁰ As Professor Phillips-Fein’s account reminds, all budgets are places where opposing visions of a city are contested, fought out, and decided;¹⁵¹ so, they should always be politically accountable. But the takeaway is that, within its proper role, state oversight can also serve the common good by ensuring politically accountable decisions are in the common interest, including long-term thinking that local politics disfavors with its incrementalism.¹⁵² It is hard to conceive that a mere shelter subsidy will bankrupt the City, especially where, as the GW Committee report states, the City already spends billions on shelter for CityFHEPS’ intended beneficiaries.¹⁵³ But it is equally inconceivable that the public would approve of a housing subsidy that would bankrupt the City and thus ultimately disserve the common good. The state’s role of superintendence is to prevent such an unexpected outcome to the common good’s detriment. It has no role to impose upon the City its view of which policies are preferable.

As acknowledged above in Section III.A, one can argue that the First Department’s conclusion pointing to limited state oversight is just an exercise in textualism, not any highfalutin subsidiarity municipalism. For, as mentioned above, the governing regulation guiding state approval contains limiting standards;¹⁵⁴ it does not, on its face, give the state unfettered discretion. But as Vermeule has reiterated, administrative law is awash in “generally stated principles whose interpretation inherently requires judgments of political morality.”¹⁵⁵ These can easily be manipulated to produce any desired outcome, including broad superintendence, if sound political morality like CGC is sidelined.¹⁵⁶ Happily, reading statutes in the light of CGC closes the loophole, one that the Vincent opinion hints at in describing the state role as one of collaboration and coordination¹⁵⁷ and in citing a long history of the state approving local legislative policymaking in the area of rental assistance.¹⁵⁸ Limits flow from CGC because, as PCG argues, CGC includes subsidiarity, and subsidiarity means that local bodies have a legitimate and indispensable role in governing a polity that complements higher orders.¹⁵⁹ This serves to limit how higher bodies can regulate localities.

One final note about the concrete scope of such state superintendence: as PCG acknowledged, progressive economic regulation is more difficult for localities since money and trade typically require vertical and horizontal coordination.¹⁶⁰ Such coordination is more properly higher bodies’ role.¹⁶¹ So, one should not be surprised if state review of cost ultimately scuppers the CityFHEPS reforms. Still, Vincent illustrates that the law serves to cabin state oversight toward liberating municipalities to adopt any local policy that they can afford.¹⁶²

*Associate Professor of Law, CUNY School of Law. J.D., Fordham University School of Law, 2009 (David F. and Mary Louise Condon Prize in American Legal History); B.A., Columbia University, 2006. This Essay is dedicated to my friends, partners, and mentors Asher Freeman and Kristina Naplatarski for their continuing insight into the function of municipal government and its special role in, and aptitude for, delivering services to the most vulnerable populations. I also thank Allyson Russell, Dariush Ahdoot, and the entire Journal of Law Reform team for their patient, tireless, and superlative development, enhancement, and sharpening of the Essay’s argument.