The Living Anti-Injunction Act

In the coming months, the Internal Revenue Service is likely to issue a slew of new regulations interpreting the December 2017 federal tax reform legislation. These regulations are likely to define the scope of the new deduction for pass-through entities; determine the reach of the new base erosion tax on multinational enterprises; fill in the details of the new “opportunity zone” program aimed at encouraging investment in low-income communities; and address a wide range of other important matters.[1] Inevitably, some taxpayers will object to these regulations and will seek to challenge the new rules in court. When, where, and how they can do so will depend upon the way courts construe the 150-year-old Anti-Injunction Act (AIA).

For decades, individuals and entities wishing to contest their tax liabilities have had a choice among three paths: (1) file a prepayment petition in the U.S. Tax Court; (2) pay the tax and then sue for a refund in federal district court; or (3) pay the tax and then sue for a refund in the U.S. Court of Federal Claims.[2] What they could not do is seek an injunction preventing the Internal Revenue Service from assessing or collecting the tax in question. Standing in their way would be the AIA, which provides, in relevant part, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”[3]

All that is now in doubt. In 2016, the U.S. Chamber of Commerce sued the IRS in the U.S. District Court for the Western District of Texas, seeking to set aside a Treasury tax regulation[4] that determines the circumstances under which a domestic entity that switches its legal domicile to a foreign country becomes subject to a special tax.[5] The IRS argued that the AIA clearly barred the chamber’s action. In a decision that surprised many observers (including me[6]), the district court said last fall that the AIA presented no barrier to the chamber’s claim for equitable relief. According to the court, the regulation “is not a tax,” but instead “determin[es] who is subject to taxation.”[7] The court then proceeded to the merits and agreed with the chamber that the regulation should be set aside.

As far as judicial decisions on matters of tax procedure go, this one was a bombshell. A headline in the trade publication Tax Notes announced that the ruling “throws [the] door open” to more challenges to IRS rules.[8] Tax scholar Andy Grewal noted that the district court’s decision “breaks from the common (though not necessarily correct) understanding” of the AIA.[9] Fellow tax scholar Bryan Camp went one step further and argued that the decision was not only a departure from precedent but also a clear misinterpretation of the AIA. In his view, “[t]his is exactly the kind of suit that the Anti-Injunction Act is supposed to stop.”[10] The IRS has appealed from the district court’s ruling to the U.S. Court of Appeals for the Fifth Circuit.[11]

With the fate of the AIA hanging in the balance, now is the perfect moment for a thoughtful and thorough treatment of the statute that traces the law’s evolution from its origins to the present day. And in Restoring the Lost Anti-Injunction Act, Professor Kristin Hickman and Gerald Kerska provide exactly that.[12] Indeed, their new article on the AIA is quite possibly the most comprehensive analysis of the Act ever written. “Timing matters,” Hickman and Kerska write in their opening sentence,[13] and while the authors are referring to the timing of judicial review, their own timing is impeccable.

Hickman and Kerska’s analysis also provides a thought-provoking counterweight to the conventional wisdom that Chamber of Commerce v. IRS marks a sharp break from the past. The narrow interpretation of the AIA adopted by the district court in the Chamber of Commerce case is, in their view, largely consistent with the “lost” history of the Act.[14] According to Hickman and Kerska, the AIA historically applied only after a taxpayer filed a return and federal tax officials began their assessment and collection efforts. Pre-enforcement judicial review of a tax regulation would, on this reading, fall outside the statute’s scope.[15]

Whether or not one ultimately agrees with Hickman and Kerska’s conclusion, their article is likely to become the jumping-off point for future debates about the AIA. I, for one, was impressed by Hickman and Kerska’s historical and doctrinal heavy lifting but was unpersuaded by their bottom line. This essay briefly summarizes Hickman and Kerska’s case for a narrower reading of the AIA and then responds with three criticisms of the authors’ argument. Specifically, I argue (1) that the history of the AIA is at best inconclusive as to whether the statute should be construed broadly or narrowly; (2) that developments in federal tax and administrative law since 1867 do not weigh decisively in favor of a narrow interpretation of the statute; and (3) that the AIA has come to play an important role—unacknowledged in Hickman and Kerska’s otherwise comprehensive analysis—in protecting an under-resourced IRS from an onslaught of administrative law challenges across a wide range of litigation forums. I end by arguing that any further narrowing of the AIA should be done by Congress—not by the courts—and should be accompanied by an increase in IRS resources and additional limits on taxpayer forum shopping.

I. Lost and Found?

Hickman and Kerska begin their argument for a narrower AIA with a deep dive into the statute’s history. As they write, “historical analysis provides a powerful tool for resolving the AIA’s meaning and scope.”[16] Yet this “powerful tool” turns out to be a double-edged sword: the lessons that the authors draw from the AIA’s history can be deployed to argue for either a narrow or expansive reading of the statute.

The story starts with the Revenue Act of 1862,[17] the first federal income tax law to take effect.[18] As Hickman and Kerska explain, this statute—enacted in the midst of the Civil War—empowered the President to divide the country into districts and to appoint “assessors” and “collectors” to administer the new tax law in each district.[19] The job of the assessors and their assistants was to receive returns, conduct investigations to determine whether taxpayers had understated their liability, publish tentative assessments, resolve appeals, and then make out a list of amounts due. Section 19 of the Revenue Act of 1862 instructed collectors to publish those lists and, if need be, seize and sell the property of tax delinquents.[20]

The AIA enters the narrative a half decade in. Styled as an amendment to be appended to Section 19, it provided (in language that has changed little in the years since) that “no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.”[21] Neither the sponsor of the amendment, Senator William Fessenden of Maine, nor any other member of the House or Senate said anything on the record about the provision’s purpose, leading one later commentator to conclude that the Act’s “legislative history is shrouded in darkness.”[22] But according to Hickman and Kerska, “Congress did not need to be more specific about the AIA’s scope because the meaning of the new restriction on judicial review was obvious from its statutory context.”[23] As they see it, the location of the new language at the end of Section 19 meant that the AIA was intended as “a limited remedy for judicial obstruction” of the “particular procedures” for assessment and collection prescribed by that Section.[24]

In the century and a half since the statute’s passage, Congress has carved out a number of specific exceptions to the AIA’s coverage. A few of those carve-outs now allow for prepayment petitions in Tax Court;[25] innocent spouse relief;[26] and injunctions in cases where a taxpayer seeks a hearing before the IRS seizes her property[27]a preparer seeks to delay collection of penalties against her,[28] or a person other than a delinquent taxpayer seeks to block the sale of property in which she holds an interest.[29] As Hickman and Kerska observe, “the only amendments to the AIA have come when Congress wanted to expand the availability of judicial review and, correspondingly, to make clear Congress’s intention to limit the AIA’s reach.”[30] The authors appear to interpret this as an indication that Congress favors a narrower AIA.

Three further developments play an important role in Hickman and Kerska’s narrative. The first involves the Tax Injunction Act of 1937 (TIA), which provides that federal district courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”[31] In the 2015 case Direct Marketing Association v. Brohl, the Supreme Court held that the TIA does not prevent a federal court from enjoining a Colorado law requiring out-of-state retailers to share certain tax-related information with Colorado tax authorities.[32] The Supreme Court also said that it “assume[d] that words in both [the Anti-Injunction and Tax Injunction] Acts are generally used in the same way” and so would interpret the two statutes in tandem.[33] According to Hickman and Kerska, “the reasoning of Direct Marketing is different from and difficult to square with at least some of the Court’s past AIA precedents.”[34] A more circumscribed construction of the Anti-Injunction Act would “bring[] the AIA in alignment” with the post-Direct Marketing TIA.[35]

Second, Hickman and Kerska note that the Administrative Procedure Act of 1946 (APA) and the Supreme Court cases construing it have established a general presumption in favor of pre-enforcement judicial review of final agency action.[36] As the Supreme Court said in Abbott Laboratories v. Gardner, “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.”[37] Interpreting the AIA to preclude pre-enforcement review of Treasury regulations puts it in some tension with the APA’s presumption of reviewability. Hickman and Kerska seek to ease that tension with a narrower reading of the AIA.[38]

Third, the authors emphasize that the federal tax laws do much more today than they used to do.[39] Important antipoverty programs, such as the Earned Income Tax Credit[40] and the Low-Income Housing Tax Credit,[41]are run through the Internal Revenue Code. Congress also uses the tax system to subsidize—and to regulate—health insurance, retirement saving, higher education, and charitable giving, among countless other tax expenditures. Hickman and Kerska fear that a robust application of the AIA will thus interfere with judicial oversight over a wide swath of the modern administrative state.

Drawing from the “lost history” of the AIA as well as these more recent developments, Hickman and Kerska propose a new “engagement test” that would “limit the AIA’s scope to those cases in which the IRS has initiated enforcement proceedings of one manner or another against a particular taxpayer” or the taxpayer has filed a return.[42]According to Hickman and Kerska, this new test would restore the Anti-Injunction Act to its “original scope” and harmonize it with the Tax Injunction Act and Administrative Procedure Act.[43] And they add that the test would be “very easy” to apply in the “vast majority” of cases, thus bringing clarity to what is now a morass of conflicting case law.[44] While they suggest that courts can adopt the test on their own, Hickman and Kerska also urge Congress to codify their new engagement test, and they propose legislative language to that effect.[45]

II. Assessing the Engagement Test

Hickman and Kerska’s “engagement test” has undeniable appeal. It provides a plausible interpretation of the AIA’s text, and by narrowing the statute’s scope, the test would ease the discomfort that many (including me) feel when legitimate challenges to Treasury regulations are tossed aside on jurisdictional grounds. And apart from the merits of the test, there is much to admire about the enterprise in which Hickman and Kerska engage. This is the sort of “practical” legal scholarship that jurists such as Judge Harry Edwards of the D.C. Circuit have urged academics to produce more often.[46]Hickman and Kerska’s article accomplishes exactly what Judge Edwards said that practical scholarship should do: it “gives due weight to cases, statutes and other authoritative texts, but also employs theory to criticize doctrine, to resolve problems that doctrine leaves open, and to propose changes in the law.”[47] Their careful and powerful argument is likely to elicit attention from judges and their clerks who come across AIA cases on their dockets.

Yet Hickman and Kerska’s inferences from the AIA’s history are also open to question. As the authors note, “[i]n 1867, when the AIA was adopted, the only circumstances in which a taxpayer might have sought injunctive relief from assessment or collection would have occurred when revenue officials acted to enforce the tax laws against particular taxpayers.”[48] Nearly eight decades before the APA and a full century before Abbott Laboratories v. Gardner, the notion that the 1867 law later would preclude pre-enforcement challenges to Treasury regulations would have seemed foreign to the Reconstruction-era Congress.

But if members of Congress in 1867 could have peered far into the future, it is not clear whether they would have wanted the AIA to apply to pre-enforcement judicial review of Treasury regulations. In Hickman and Kerska’s view, Congress wanted the statute to apply only to injunctions against assessors and collectors who were enforcing the tax laws against particular taxpayers. Hickman and Kerska also note, though, that the statute originally “forced aggrieved taxpayers to pay their taxes as assessed and sue the government for a refund” rather than pursue alternative remedial paths.[49] The alternative of a pre-enforcement challenge to a Treasury regulation was not one that existed at the time, but if it had, perhaps Congress would have wished to cut that route off too. In other words, we know that Congress wanted aggrieved taxpayers to sue for a refund rather than to seek injunctive relief against assessors and collectors, but that tells us little about whether Congress wanted to allow other end runs around the refund remedy.

The postenactment legislative history of the AIA also is amenable to competing inferences. On the one hand, the fact that Congress has narrowed the statute’s scope again and again might suggest that it disfavors an expansive reading. On the other hand, Congress clearly knows how to cut back on the AIA when it wants to, and the fact that it has stood by as courts have construed the statute expansively might suggest that Congress acquiesces to the broader interpretation. In all likelihood, very few members of Congress in the past century and a half have arrived at any opinion whatsoever as to whether the AIA should preclude pre-enforcement judicial review of Treasury regulations. The fact that Congress has carved out a number of other exceptions to the AIA does not mean that the legislative branch favors the particular narrowing that Hickman and Kerska propose.

The Supreme Court’s interpretation of the TIA in Direct Marketing Association v. Brohl also does not yield clear lessons with respect to pre-enforcement judicial review and the AIA. The similar language in the two statutes—”restrain[] the assessment . . . or collection of any tax”[50]—demands some limiting principle; otherwise, a suit to stop the construction of a state highway could be barred by the AIA or TIA because it interferes with the ability of tax authorities to travel around and do their jobs. The Court in Direct Marketing concluded that the Colorado law, which required retailers to share tax-related information with the state but did not impose any tax on them, was too attenuated from “assessment” and “collection” for it to fall within the TIA’s protection.[51] But that does not tell us whether an order that sets aside a regulation determining actual tax liabilities operates as a “restrain[t]” on assessment and collection.

The rise of pre-enforcement judicial review under the Administrative Procedure Act fails to illuminate the Anti-Injunction Act’s scope any further. Hickman and Kerska write that “Congress, in Section 559 of the APA, expressly instructed courts to read the APA and specific statutes like the AIA so as to give maximum effect to both.”[52] But that is plainly not what the APA mandates. Section 559 says that the provisions of the APA “do not limit or repeal additional requirements imposed by statute.”[53] The AIA is one such additional requirement, instructing taxpayers as to when and where they can seek relief. Section 559 goes on to say that any “[s]ubsequent statute may not be held to supersede or modify [the APA], except to the extent that it does so expressly,”[54] but the Anti-Injunction Act, which precedes the Administrative Procedure Act by nearly eighty years, is not a “subsequent statute.”

The octopus-like extension of federal tax law’s tentacles into new areas of American life likewise tells us little about the AIA’s reach. To be sure, Congress circa 1867 could not have imagined that programs like the Earned Income Tax Credit and the Low-Income Housing Tax Credit would be run through the Internal Revenue Code. But members of Congress most certainly did know about the existence of the AIA when they first enacted the Earned Income Tax Credit in 1975[55] and the Low-Income Housing Tax Credit in 1986.[56] There are many reasons why lawmakers might have chosen to place these provisions in Title 26 and to assign administrative responsibility to the IRS, but the fact that the AIA would shield regulations under these provisions from pre-enforcement judicial review might have been one attraction. At the very least, if one believes that Congress carefully placed the AIA where it did in 1867 so as to send a signal regarding the provision’s scope, it becomes difficult to argue that Congress scattered other provisions throughout the Internal Revenue Code by sheer accident or happenstance.

None of this is to suggest that the inferences drawn above from the Anti-Injunction Act’s history, the Supreme Court’s Tax Injunction Act case law, and subsequent developments in federal administrative and tax law are more plausible than the conclusions that Hickman and Kerska reach. Rather, the point is that the materials upon which Hickman and Kerska rely are inconclusive. Neither the partisans for a broader reading of the AIA nor the proponents of a narrower interpretation can claim that the historical origins, statutory context, or subsequent developments in administrative law and Tax Injunction Act jurisprudence confirm the correctness of their position. At least as I see it, the debate over the AIA’s proper scope ultimately turns on normative arguments that are based on contemporary concerns and conditions. The AIA’s “lost history” can inform this debate but cannot resolve it.

III. A Modern Anti-Injunction Act

Against a present-day backdrop, the AIA stands out as peculiar in several respects. First, the fears that seem to have motivated the statute’s enactment appear outmoded today. In light of our modern pay-as-you-go tax system as well as the United States’ access to deep and liquid capital markets, it is hard to imagine any injunction seriously disrupting the flow of federal revenue.[57] And insofar as the law was intended to protect individual local tax collectors from vexatious litigation,[58] there is something strange about using it to shield the IRS as a whole from suit.

Meanwhile, the statute sometimes dictates not merely the time and forum of taxpayer challenges but whether such challenges will be pursued at all. Consider the inversion-related regulations at issue in Chamber of Commerce v. IRS.[59] The special tax on domestic companies leaving the country is sufficiently steep that the very possibility of having to pay it will deter many firms from moving their legal domicile abroad. The in terrorem effect of certain Treasury regulations may be so great that the rules will remain immune from challenge unless they can be contested in a pre-enforcement action. While the inversion regulations strike me as an appropriate exercise of IRS authority, there is certainly something disconcerting about the notion that the IRS could issue legally defective rules and escape judicial oversight.

Yet even if the AIA has outlived its original purpose, and even if it yields normatively unattractive consequences in certain circumstances, the statute still serves at least two useful ends. First, it relieves some of the immense pressure on the IRS’s already-strained regulatory resources. As Hickman has argued elsewhere, temporary Treasury regulations, IRS revenue rulings, and other guidance documents issued by the IRS may be vulnerable to APA challenges on the grounds that these pronouncements did not go through the notice-and-comment process required for so-called “legislative rules.”[60] Yet as Hickman also acknowledges, broad application of the notice-and-comment requirement to temporary Treasury regulations and other IRS pronouncements would make it more difficult for the agency to respond to taxpayers’ need for guidance and could at times be “ridiculously wasteful.”[61] And this is at a time when the IRS has precious few resources to waste: the agency’s workforce is only two-thirds of what it was a quarter century ago,[62] and the Trump administration’s most recent budget proposes base funding for the agency that, in real terms, is down by more than one-fifth since 2010.[63] By delaying challenges to IRS pronouncements, the AIA gives the agency additional time to complete the notice-and-comment process for final rules while also allowing it some flexibility in issuing temporary regulations and other stopgap measures.

Second, and in a similar vein, the AIA protects the IRS from forum shopping by plaintiffs who otherwise would seek a nationwide injunction in the friendliest district court that they could find. Without the AIA, sophisticated taxpayers and the interest groups that represent them would enjoy a “general hunting license” to fire at the IRS in different jurisdictions until one of their shots strikes flesh.[64] This is not a problem unique to the IRS: other commentators have noted that the increasingly widespread use of nationwide injunctions poses a growing challenge to administrative agencies of all sorts.[65] But the fact that this problem plagues other administrative agencies is not a reason to foist it upon the IRS as well. Narrowing the AIA without also reining in the practice of nationwide injunctions would make an already-significant problem that much worse.[66]

Against these benefits must be weighed the cost of delaying a day in court for taxpayers with valid grievances. But existing Supreme Court case law construing the AIA ameliorates some of the statute’s more draconian effects. The Supreme Court has held that the AIA applies “only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf;”[67] if there is no way for a party to challenge an IRS determination in a later Tax Court proceeding or refund suit, the party can seek a pre-enforcement remedy. The Supreme Court also has carved out a limited exception allowing pre-enforcement injunctions when the challenger can show that she would suffer “irreparable injury” from a delay and that the IRS could not possibly prevail on the merits.[68] As noted above, this still deters some taxpayers from challenging certain IRS positions indefinitely. For example, a company is unlikely to undertake a merger so that it can move its legal domicile overseas unless it can be sure that it will avoid the special tax that is at issue in Chamber of Commerce.[69] But in most cases in which a taxpayer seeks a deduction or contests the inclusion of an item in income, the statutory scheme ultimately allows her a judicial hearing and the possibility of full relief.

To be sure, the AIA is a rather roundabout way of writing a statute to achieve the goals I have laid out for it. A more direct approach would be for Congress to (1) fund the IRS appropriately and (2) establish limits on forum choice that mitigate the risk of nationwide injunction shopping. The latter objective might be accomplished through a jurisdictional statute that allows pre-enforcement challenges to Treasury regulations exclusively in the U.S. District Court for the District of Columbia, with appeal to the D.C. Circuit. In contrast, a ban (with limited exceptions) on equitable actions against the IRS appears to be overbroad.

Yet in our far-from-first-best world, with a woefully underfunded IRS and few apparent limits on the ability of district courts to issue nationwide injunctions, the notion of narrowing the AIA so as to allow pre-enforcement judicial review of tax regulations seems to me like a risky gambit. Better, in my view, for courts to defer to Congress and for Congress to pair any amendment to the AIA with a boost in IRS funding and a forum provision like the one described above. To whittle down the AIA without simultaneously bolstering the IRS’s defenses would be to expose the tax authority to an onslaught that could overwhelm it.

There are commonalities between this argument and elements of Hickman and Kerska’s case for a narrower AIA. Although their title highlights their appeal to history, their analysis accounts for the more recent evolution of the federal tax system. But while they emphasize the expansiveness of the current Code, my focus is on the hollowed-out agency that has been tasked with interpreting and administering our tangle of tax statutes. To be sure, I cannot claim that my view of the AIA as a shock-absorber for the IRS is deeply rooted in the statute’s nineteenth-century history. But it is attentive to the reality of twenty-first-century tax administration.

Where does that leave us as to the AIA’s reach? In my view, the Supreme Court’s AIA case law supplies a serviceable test. First, a court considering a pre-enforcement challenge to a federal tax would ask whether the challenger would have a subsequent opportunity to litigate the claim on her own behalf in the Tax Court or in a refund suit. If no, the suit could proceed.[70] If yes, the AIA would bar relief unless the challenger could show both “irreparable injury” and “certainty of success on the merits.”[71] On this view, preemptive strikes against Treasury regulations would in most cases fail. They would succeed only when Congress has provided the challenger with no other avenue for redress or when the IRS’s action is both indefensible and irremediable.

In sum, the flurry of regulatory activity that we are likely to see soon from the IRS makes the question at the heart of Hickman and Kerska’s article—whether the AIA bars pre-enforcement judicial review of tax regulations—vitally important. But the same factor that makes their analysis so relevant should also give us pause regarding the solution that they propose—a solution that would place further stress on an IRS that already appears to be buckling under the burden of the new tax law.[72] Hopefully there will arrive a time in the not-too-distant future when resource constraints are less binding and process values can be vindicated. If at that point Congress revisits the statute, Hickman and Kerska’s “engagement test” strikes me as a viable template for an updated AIA. Again, timing is everything. And the time for the “engagement test” has yet to come.

*Assistant Professor of Law, University of Chicago Law School. For helpful comments, the author thanks Ellen Aprill, Wei Cui, Cliff Flemming, Andy Grewal, Kristin Hickman, Aaron Nielson, and Jacob Ruby. All errors are my own.

[1] See An Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub. L. No. 115–97, § 11011 (2017) (deduction for qualified business income of pass-thru entities); id. § 13823 (opportunity zones); id. § 14401 (base erosion minimum tax); see also David J. Kautter & William M. Paul, U.S. Dep’t of the Treasury, 2017–2018 Priority Guidance Plan (Second Quarter Update) (Feb. 7, 2018), https://perma.cc/FZF9-55LB (listing in Part 1 of the plan some of these and several other goals as “near term priorities” for the “initial implementation” of the 2017 tax law”).

[2] See, e.g., Joseph Bankman et al., Federal Income Taxation 42 (17th ed. 2017).

[3] I.R.C. § 7421(a) (2012).

[4] The IRS is an agency within the U.S. Department of the Treasury, and courts commonly refer to regulations published by the IRS as “Treasury regulations.” See, e.g., PPL Corp. v. Comm’r, 569 U.S. 329, 331 (2013).

[5] Chamber of Commerce v. IRS, No. 1:16–CV–944–LY, 2017 WL 4682050, at *1 (W.D. Tex. Sept. 29, 2017).

[6] Daniel Hemel, The Chamber of Commerce Has an Anti-Injunction Problem, Yale J. on Reg.: Notice & Comment (Aug. 6, 2016), https://perma.cc/KU4S-4GPL.

[7] Chamber of Commerce, 2017 WL 4682050, at *3.

[8] Andrew Velarde, Chamber of Commerce Throws Door Open for More Reg Challenges, Tax Notes (Oct. 3, 2017), https://perma.cc/WW73-AFE8.

[9] Andy Grewal, Loss in Anti-Inversion Case Strikes Potentially Major Blow on IRS’s Rulemaking Authority, Yale J. on Reg.: Notice & Comment (Sept. 30, 2017), https://perma.cc/V5CF-M6PE.

[10] Bryan Camp, More on the Successful Challenge to the Anti-inversion Regulations, Procedurally Taxing (Oct. 2, 2017), https://perma.cc/T9SV-PFJF.

[11] Notice of Appeal, Chamber of Commerce v. IRS, No. 17–51063 (5th Cir. filed Nov. 27, 2017), ECF No. 1.

[12] Kristin E. Hickman & Gerald Kerska, Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683 (2017), https://perma.cc/SJX3-FDLV.

[13] Id. at 1684.

[14] Id. at 1687, 1766.

[15] Id. at 1753–56.

[16] Id. at 1721.

[17] Ch. 119, 12 Stat. 432.

[18] Hickman & Kerska, supra note 12, at 1721–22. Congress included an income tax in the Revenue Act of 1861, ch. 45, § 49, 12 Stat. 292, 309, but that statute never took effect. See Sheldon D. Pollack, The First National Income Tax, 1861–1872, 67 Tax Law. 311, 320–21 (2014).

[19] Hickman & Kerska, supra note 12, at 1722.

[20] Id. at 1723–24; see Revenue Act of 1862 § 19.

[21] Revenue Act of 1867, ch. 169, § 10, 14 Stat. 471, 475.

[22] Note, Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv. L. Rev. 109, 109 & n.9 (1935).

[23] Hickman & Kerska, supra note 12, at 1725.

[24] Id.

[25] I.R.C. § 6213(a) (2012).

[26] Id. § 6015(e).

[27] Id. § 6330(e)(1).

[28] Id. § 6694(c).

[29] Id. § 7426(a) & (b)(1).

[30] Hickman & Kerska, supra note 12, at 1731.

[31] 28 U.S.C. § 1341 (2012).

[32] 135 S. Ct. 1124, 1127 (2015).

[33] See id. at 1129.

[34] Hickman & Kerska, supra note 12, at 1711.

[35] Id. at 1757.

[36] Id. at 1684–85; see 5 U.S.C. §§ 701–706 (2012).

[37] 387 U.S. 136, 140 (1967).

[38] Hickman & Kerska, supra note 12, at 1757.

[39] Id. at 1713, 1717–20.

[40] I.R.C. § 32 (2012).

[41] Id. § 42.

[42] Hickman & Kerska, supra note 12, at 1754.

[43] Id. at 1756–57.

[44] Id. at 1758.

[45] Id.

[46] Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 35 (1992).

[47] Id.

[48] Hickman & Kerska, supra note 12, at 1751.

[49] Id. at 1725.

[50] 28 U.S.C. § 1341 (2012); see also I.R.C. § 7421(a) (2012) (“restraining the assessment or collection of any tax”).

[51] Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124, 1131 (2015).

[52] Hickman & Kerska, supra note 12, at 1756–57.

[53] 5 U.S.C. § 559 (2012) (emphasis added).

[54] Id. (emphasis added).

[55] I.R.C. § 32 (2012).

[56] Id. § 42.

[57] See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962) (stating that through the AIA, the federal government “is assured of prompt collection of its lawful revenue”).

[58] See id. at 7–8 (stating that a “collateral objective of the Act” is “protection of the collector from litigation pending a suit for refund”).

[59] 26 C.F.R. § 1.7874-8T (2017).

[60] Kristin E. Hickman, Unpacking the Force of Law, 66 Vand. L. Rev. 465, 492–502 (2013); see 5 U.S.C. § 553 (2012) (notice-and-comment requirement).

[61] Hickman, supra note 60, at 531.

[62] Internal Revenue Serv., Internal Revenue Service Data Book 2016, at 66 tbl. 29 (2016), https://perma.cc/48YA-VB47.

[63] Compare Office of Mgmt. & Budget, Budget of the United States Government, Fiscal Year 2019, at 90 (2018) (proposing an IRS budget of $11,100,000,000), with Office of Mgmt. & Budget, Budget of the United States Government, Fiscal Year 2011, at 119 (2010) (proposing an IRS budget of $12,147,000,000). The 2010 figure adjusted for inflation is $13,894,000,000. See U.S. Dep’t of Labor, Bureau of Labor Statistics, CPI Inflation Calculator, https://perma.cc/W3DW-88ZF (last visited Feb. 20, 2018).

[64] Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 183 (1967) (Fortas, J., dissenting in part and concurring in part) (“[A]rming each of the federal district judges in this Nation with power to enjoin enforcement of regulations and actions under . . . federal law . . . is a general hunting license; and I respectfully submit, a license for mischief . . . .”).

[65] For comprehensive treatments of the subject, see Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418–422 (2017); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017).

[66] This is not to suggest that nationwide injunctions should be abolished altogether. But even those who defend the practice under some circumstances acknowledge that district courts should not use them in all circumstances. See Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49, 50–51 (2017).

[67] See South Carolina v. Regan, 465 U.S. 367, 381 (1984).

[68] See Bob Jones Univ. v. Simon, 416 U.S. 725, 737 (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962).

[69] See I.R.C. § 7874 (2012) (imposing tax on “inversion gain” of expatriated entities).

[70] See South Carolina, 465 U.S. at 381.

[71] See Bob Jones Univ., 416 U.S. at 737.

[72] See Editorial, Don’t Cheer as the I.R.S. Grows Weaker, N.Y. Times (Dec. 29, 2017), https://www.nytimes.com/2017/12/29/opinion/dont-cheer-as-the-irs-grows-weaker.html; Jeanne Sahadi, IRS Needs More Money to Implement the New Tax Law, CNN Money (Jan. 10, 2018), https://perma.cc/6AQM-MMNJ.

When White Supremacists Invade a City

In August 2017, hundreds of white supremacists came to Charlottesville, Virginia, ostensibly to protest the city council’s decision to remove a statue of Robert E. Lee. This Essay argues that Charlottesville’s vulnerability in the face of white supremacist invasions is a feature of all cities’ liminal status in American law. Municipal corporations neither enjoy the full power of the state nor the rights accorded individuals and private corporations. Among other limitations, state law restricts Charlottesville’s authority to remove Confederate war memorials or to regulate firearms. So too, our current constitutional doctrine does not easily permit cities to assert First Amendment rights against state-mandated local government speech. Nor can cities readily assert a collective civil or constitutional right to be free from violence and intimidation. The lack of either municipal power or municipal rights means that a city faced with the symbolic and physical “takeover” of its downtown by heavily armed aggressors has limited legal resources with which to respond.

“That we have fallen into the habit of treating the city as a mere jurisdictional entity, subject to the whims of the state, is unnecessary. And it means that the next time the white supremacists come to town, the city will still not have the tools to defend itself.”

Introduction

CHARLOTTESVILLE is a small university town. It has a population of approximately 47,000 residents; it occupies a territory of about 10 square miles.[1] The Charlottesville “downtown” is about eight square blocks. The city has a part-time city council and mayor, a professional city manager, a city attorney and an assistant city attorney. The Charlottesville police department has 127 officers.[2] There is one high school, one synagogue, and the largest employer in town is by far the University of Virginia.

When white supremacists, neo-Nazis, and Ku Klux Klan members targeted Charlottesville in August 2017, they did so in part because the city council had voted to remove a statue of Robert E. Lee that was erected in 1924 as a symbol and reassertion of the authority and power of the Old South, in a town that is 19% African-American and overwhelmingly politically liberal.[3] The statue sits in what used to be Lee Park, until the name was changed to Emancipation Park more recently.[4]

The Unite the Right rally was promoted as a direct challenge to the idea of Charlottesville itself—a relatively socially progressive community seeking to reconcile with its apartheid past. The white supremacists came with torches and marched at night to heighten the sense of foreboding and fear that they intended to foster.[5] The marchers also carried guns, and even more elaborate weaponry—shields, mace, helmets, body armor, clubs, and flag poles.[6] The Unite the Right rally was not a march per se; it was an armed invasion, well-coordinated and planned, and intended to be a visible manifestation of force and occupation. It was, according to the organizers’ own rhetoric, an effort to assert territorial claims, to undermine the feelings of safety and security felt by Charlottesville residents.[7] The protestors chanted “Jews will not replace us,” and more generically, “You will not replace us.”[8] And they promised to keep coming back to Charlottesville—a promise they kept by returning again with a smaller group on October 7, 2017.[9]

What is the proper response of a city to this kind of ongoing threat? It is not entirely clear—at least as a legal matter. Of course, there are practical ways to deploy police to more effectively ensure public safety. Better rules of engagement can be adopted and those who act violently can be arrested.

But the city’s vulnerability is more profound, even if more difficult to address. This vulnerability is a function of the city’s—all cities’—liminal status in American law. Cities are state actors, but without the real power of the state. Constitutionally and legislatively subordinate to state legislatures, cities cannot effectively self-govern in important ways. Cities only exercise “state” power derivatively and that exercise is often and easily overridden.

At the same time, however, cities generally do not enjoy constitutional or civil rights. The city is on the “public” side of the public/private distinction in American law, which means that the city cannot be legally understood to be a victim of powerful private exercisers of violent force.

In other words, American cities are betwixt and between—they enjoy neither power nor rights. The city of Charlottesville is only nominally the state—the Virginia General Assembly exercises virtually plenary power over what it can and cannot do. Yet the city—unlike other corporate or associational entities—is also not a full-fledged rights-bearer. Under current doctrine, a city qua city cannot readily invoke the First Amendment to protect its decision to remove Confederate monuments, nor can it readily assert a collective constitutional or civil right to be free from fear and intimidation. The city has few rights, but also enjoys limited powers.

There is nothing in the nature of cities or local governments to require this state of affairs, as commentators have regularly observed.[10] Municipal corporations could assert rights against the state without threatening the state’s authority; private corporations regularly assert such rights. Similarly, the city could be granted more extensive powers by the state. Again, private corporations have significant authority to govern themselves even while being subject to the state’s general laws.

That cities are limited in their legal capacity is mostly a matter of judicial habit. But this habit has consequences. Unable to exercise the full power of the state but also denied the rights enjoyed by individuals and other corporate bodies, the city finds itself unable to respond to existential threats.

I. The City’s Power

The foundational reality for cities in America is that any power they exercise is—as a legal matter—derivative. Citizens and elected officials in Charlottesville debate what the city can do in response to invading paramilitary, neo-Nazi forces. But the answer is not a great deal, for one major reason: much of the power and authority to act is lodged not in city officials but in state officials, namely in the Virginia General Assembly.

Cities are weak legal creatures, and cities in Virginia are particularly so. Virginia is a so-called “Dillon’s Rule” jurisdiction.[11] Formulated by jurist John Dillon in 1868, Dillon’s rule requires that all exercises of city power be traced back to a specific legislative grant of authority.[12] Dillon’s Rule is often contrasted with “home rule” jurisdictions, in which cities enjoy a broader initial grant of authority and are able to act without specific authorization. The practical differences between Dillon’s Rule and home rule jurisdictions, however, can be slight—a difference of emphasis more than outcome—because even in states with home rule, legislatures can normally override municipal laws with conventional legislation. States do so with increasing regularity.[13]

Two Virginia state laws are relevant in Charlottesville’s case. The first is the Commonwealth’s “open carry” statute, which permits individuals to carry weapons openly on their person except under limited circumstances.[14] Virginia’s open carry law complicates the city’s ability to regulate and control armed protestors. At the August 12 Unite the Right rally, hundreds of protestors (and a few counter-protestors) marched through the city brandishing their semi-automatic weapons.[15] Many protestors were associated with various non-state “militias” that had mustered from different parts of the country—mostly out-of-state. The militia members were in many cases uniformed—some wore helmets, body armor, and carried military-style backpacks and other paraphernalia. For that reason, they were sometimes mistaken for police or national guardsmen.[16]

Arms and the First Amendment create a combustible combination.[17] Jurisdictions have regularly restricted the items that protestors can carry in public places during First-Amendment-protected activities.[18] But in Virginia, local governments are preempted by state law from regulating almost any aspect of firearms ownership and use absent explicit state authorization.[19] The Charlottesville police were constrained in restricting the carrying of guns by Virginia’s laws.[20] If the city had the authority, it would undoubtedly have adopted much more restrictive gun laws than the Commonwealth. But the city does not have that power.

So too if it had the authority, the city would have removed the Robert E. Lee statue that provided the excuse for the armed protestors to march in the first place.[21] But here too state law governs local decisions. Virginia law authorizes localities to erect war memorials to certain wars (including the “War Between the States”) and then bars their removal.[22] This “statue statute” was amended in 1997 to include cities within its ambit.[23] A currently contested question is whether the law applies to Charlottesville’s Confederate monuments, which were constructed before 1997. A Charlottesville circuit court has ruled that it does, while a different circuit court, the Governor, and the Commonwealth’s Attorney General have all asserted that it does not.[24] Charlottesville’s statue of Robert E. Lee was erected in 1924, at the same time that the city created the park in which the statue sits.

There is a strong argument for applying the statute only going forward. In a Dillon’s Rule state, localities only have the powers expressly granted, and the predecessor statute to the 1997 version never granted authority to cities to build Confederate war memorials in the first place. Early versions of the war memorial statute—going back to 1904—expressly authorized counties to erect war memorials and restricted their ability to remove them.[25] When the Lee statue was built, Charlottesville must have been acting under a different grant of authority, and one that never contained a restriction on removal. In 1924, Virginia cities enjoyed a general grant of authority to build, maintain, and beautify parks—a provision that would arguably include putting up statuary.[26] Telling Charlottesville that it is stuck with the monuments it erected in the early part of the twentieth century under a grant to beautify its parks seems like the imposition of a restriction that was not contemplated at the time.

Whether the statute applies only going forward or also to previously erected monuments, however, the point remains the same: the legislature exercises unquestioned control over a city’s decision to erect or remove a war memorial wherever it stands. The statuary in local parks, along local avenues, and in town squares is a matter of state authorization and restriction, at least going forward. The General Assembly could clarify its authorization at any time to permit local governments to remove Confederate monuments. It has instead attempted to do the opposite—passing a 2016 law that the Governor vetoed that would have made clear that the current statute applies retroactively.[27]

Why adopt such a restraint on local authority? It is not entirely clear. A predecessor version of the war memorial statute applied only to Confederate monuments, authorizing their erection and forbidding their removal.[28] Perhaps the General Assembly was worried that some in the community would find the valorization of Confederate soldiers and generals ill-timed or insulting—after all, the Confederates were traitors to the Union. And African-American residents of these places might have different views as to the appropriate memorialization of such men.

Perhaps the legislature thought that future generations might look less kindly on these old generals, or might simply decide to commemorate something else, as memories dimmed and tastes changed. Like many Confederate memorials throughout the South, Charlottesville’s Lee statue was erected in what was originally a whites-only park, as a symbol of racial supremacy during Jim Crow.[29] Its purpose and message was to reassert white southern identity and celebrate a distinctly southern nationalism.[30]

If one asks what sorts of government tasks should be allocated to what level of government, decisions regarding statuary in a local park would seem to be best made by local communities. Why does the state-wide political community care whether Charlottesville has a Lee statue in the middle of now-Emancipation Park? If we begin with a presumption of subsidiarity—a principle that governmental tasks should be allocated to the most decentralized level of government that is competent to perform those tasks[31]—then one needs a rationale for regulating at the state level. The usual rationales for centralized regulation in any given case are the presence of externalities, the need for uniformity, and a concern about pathologies in the local political process that result in majoritarian oppression.

The first two are very weak in the case of Confederate statues, unless the psychic pain of the removal of the Lee statue is so great to residents living in other parts of the state that it overrides any local psychic pain of leaving it standing. Whether externalities should include psychic harms is itself an important question—most centralized regulation is justified when local regulation imposes material costs on outsiders, as when a local government adopts too lax pollution controls. Uniformity too seems unnecessary in this instance; that rationale usually applies to regulatory ordinances that impose costs on cross-border activities. That a city has or does not have a Confederate monument makes little difference in any particular cross-border enterprise.

That leaves oppression—the worry that local majorities are somehow targeting local minorities for differential (and unfavorable) treatment. Certainly there are members of the Charlottesville community who would prefer to see the Lee statue remain. But is this really the kind of majoritarian oppression we are worried about when we regulate centrally? Again, the psychic harms of removal might be real, but do they really demand the assertion of state authority over local decision-making about statues in parks?

Defenders of a general state ban on the removal of war memorials could argue that such a ban protects veterans from being dishonored by local anti-war or anti-veteran factions. But the chances of such dishonor seem slim. Veterans are likely to be well-represented in the local political process; anti-memorial groups are much more likely to lose local political fights—especially if those who oppose the memorials are a traditionally discrete and insular minority. African-American citizens may be more likely to oppose Confederate monuments—but they are generally outvoted. It is worth noting that in an initial vote, Charlottesville’s city council rejected a proposal to remove the Lee statue.[32]

Those who think that local war memorials are properly the province of state law likely would find that any action that locals take with which they disagree is grounds for centralized regulation. So too with regard to open carry laws. For those who believe in strong gun rights, local restrictions are anathema, even if local communities might be better suited to consider the conditions under which guns might be productively regulated. Urban places, for example, might have very different concerns about gun use than rural ones. A sensible decentralization would likely obtain if these policies were not so ideologically fraught.

Unfortunately, a sensible division of labor is not generally the norm. Debates tend to focus on the substantive policy rather than on who should be tasked with adopting it. The location for the regulation of guns and statues is not based on principled decisions about where authority should reside, but is rather a political decision about what outcomes certain groups desire. Once local governments across the country began to take down Confederate monuments, state legislatures (mostly in the former Confederacy) began to restrict or consider restricting local power.[33] That is no surprise.

II. The City’s Rights

That the city is subject to state power is unremarkable—all individuals and corporate bodies are subject to state law. But the city is subordinate in a second way. Unlike individuals and corporations, the city does not generally enjoy countervailing property or constitutional rights. Even though Charlottesville is not the state, it is the “state.” It is conceptually difficult for the city to assert rights against the state or private rights-bearers.

The relative thinness of a municipality’s corporate rights is a function of the rise of the public/private distinction in the nineteenth century. Almost a generation ago, legal scholars Gerald Frug and Hendrik Hartog described how the municipal corporation lost its corporate privileges and became an arm of the state, while the private business corporation attained property and constitutional rights.[34] Both the municipal corporation and the business corporation were and are creatures of the state—the powers of all subordinate corporate bodies are derived from the legislature. And yet the distinction between public and private corporations means that the former are almost wholly beholden to state power, while the latter can assert the rights that all individuals enjoy against state encroachment.

One important implication of the private/public distinction is that the city cannot immediately assert a First Amendment right to speak on its own behalf.[35] Certainly war memorials, Confederate statues, and the names of parks and streets are expressive. But these acts of expression are—in the parlance of the First Amendment—”government speech”[36]—and cities, being subordinate governments, cannot readily argue that the city’s free-speech rights are being violated when the state refuses to let them decide what to say. Private corporations enjoy expansive First Amendment rights.[37] But courts have treated the municipal corporation as differently situated vis a vis state speech restrictions, even if the logic of the distinction is undertheorized.[38]

Recently, Professors Chip Lupu and Robert Tuttle argued that a First Amendment right could be asserted by city residents on the theory that the city’s removal decision implicates core free speech concerns.[39] They argue that in blocking the removal of Confederate monuments, the state is putting a thumb on the speech scale—in this case in favor of a white supremacist message that is anathema to the local community.[40] The privileging of a particular viewpoint by the state violates the Charlottesville citizens’ First Amendment rights by making it impossible for them to decide what they as a community want to say.

That “[e]ach political community—federal, state, and local—should have presumptive political autonomy to decide whom to venerate”[41] (as Lupu and Tuttle write) seems correct to me. Principles of democratic self-government and subsidiarity support that contention.

Nevertheless, the public/private distinction is a barrier to the assertion of the city’s First Amendment rights. As Lupu and Tuttle concede, the state is entitled “to choose and broadcast its own message, even if the message is obnoxious to a number of its people.”[42] Governments speak all the time. For the most part, what they say is a matter of politics and not a matter of constitutional law.

Government speech motivated by animus or speech that denigrates religious or racial minorities by sending a message of disfavored status can be challenged on constitutional grounds, however.[43] Charlottesville can certainly assert that the city’s Confederate monuments were motivated by animus (the Ku Klux Klan was a visible celebrant at the dedication of the Lee statue) and that those statues continue to express a message of disfavored status to the city’s minority communities. More importantly, the city can argue that it does not want to be associated with those messages. It wants to be able to control its own expressive acts in accordance with the views of its own political community.[44]

The public/private distinction makes such arguments doctrinally problematic. If cities qua cities do not enjoy rights, then what is the basis for a claim that a city’s speech is being unconstitutionally restricted? So too the public/private distinction makes it difficult for a city qua city to assert that private actors are threatening its peace and security. Again, the city cannot readily assert a right to be free from intimidation and violence, even if it is under siege from well-organized and well-supported private actors.

Consider two lawsuits arising out of the Unite the Right events. In the first, filed in federal court, members of the Charlottesville community who were injured in the protests are suing white supremacist organizers and actors for conspiring to deprive them of their constitutional rights.[45] They are using a federal statute[46]—the so-called Ku Klux Klan Act (codified at 42 U.S.C. § 1985 and § 1986)—which was intended to counter the power of private vigilante groups to prevent them from terrorizing newly-freed black slaves.[47] The Ku Klux Klan exercised de facto political and coercive power in Charlottesville and in many places in the South (and sometimes in the North)—often operating hand-in-hand with local authorities.[48] That history is a good example of how public rights can be undermined by private actors exercising something that looks like public power.

A second lawsuit has been filed in state court on behalf of the City of Charlottesville, a group of local businesses, and a number of neighborhood associations.[49] That lawsuit seeks an injunction to prevent the return of well-armed militias to the city pursuant to the Virginia Constitution, which states that “in all cases the military should be under strict subordination to, and governed by, the civil power.”[50] The complaint also asserts that the defendant militias engaged in unlawful paramilitary activity in violation of the Virginia Code[51] and that their activities constituted a public nuisance.[52]

Both lawsuits will have to run a First Amendment gauntlet, though the allegations in the complaints together appear to establish that the Unite the Right rally participants engaged in a well-organized effort to threaten and terrorize the city’s residents and commit acts of violence against them.[53] Based on the alleged facts, the protestors’ exercise of constitutionally-protected free speech was incidental to the actual purpose and outcome of their gathering—to spread fear and induce violence against the local populace.

Those acts represent a moment when the state lost control of a central feature of its “stateness.” As the city’s complaint observes “[t]he establishment of private armies is inconsistent with a well-ordered society and enjoys no claim to protection under the law.”[54] Without the capacity to control private paramilitary groups, Charlottesville revealed itself to be a vulnerable party, unable to meet its basic obligation to defend its citizens from violence. In the lawsuit to which it is a party, Charlottesville invokes state power. It seeks to reassert its monopoly on violence by clothing itself in the Commonwealth’s authority to control the militias.

That the city cannot readily join the first lawsuit and has to seek a judicial decree to enforce the state’s basic obligation in the second is telling. On the one hand, the city lacks an injury to a cognizable constitutional right—the city qua city enjoys no such rights. On the other hand, the city appears to have limited power to counter the non-state exercise of coercive force. The city’s duty “to protect public safety was undercut”[55] by the militias, which acted as if they were the police and military. The city’s capacity to protect its citizens was also undercut by the Commonwealth of Virginia, which is the ultimate repository of the monopoly on force and failed effectively to assert it. In the state’s absence, the city has limited capacity to act on its own.

The two complaints are remarkable documents. They reveal a set of interlocking organizations and leaders intent on asserting territorial domination—at least for a short time—over a small university town. The white supremacists mock the mayor, threaten civilians with violence, and make plans for repeated invasions. The purposes and goals of the Unite the Right rally are asserted in military terms—the enemy is the city.[56] The city itself is under siege—physically and mentally—a “takeover” of space that is symbolic of the larger assertion of white supremacy and religious superiority.

More disturbing, however, is the city’s seeming impotence in the face of these threats. The city’s weakness is not in the main a function of its politics or administration (though important questions have been raised about the city’s preparation and response to the events of August 11–12[57]). Whatever the city administration did or failed to do on those days, the city’s legal and constitutional vulnerability remains the same. Limited in its exercise of power and rights, the city can only urge the state to grant it powers or to assert state power on the city’s behalf.

Conclusion

We should worry about this state of affairs, both in the immediate aftermath of white supremacist invasions and more generally. The city is vulnerable in that it is subordinate to the state, which can and does limit the city’s authority significantly.[58] The city is also vulnerable because it is subject to domination by private actors, which can and do imperil the city’s safety, security, and economic stability. We treat cities as if they are exercising state power, but municipal corporations exercise significantly less power than do their private counterparts, as Gerald Frug argued more than twenty-five years ago.[59]

Nevertheless, we demand a great deal from the city—and from sub-state governments of all kinds. Local governments in the United States are charged with effectuating the “police power”: regulating for the health, safety, and morals of the populace. Cities are asked to foster economic development, provide basic services, respond to environmental, public health and other crises, and adopt effective rules and regulations that are responsive to citizens’ needs and desires. These broad responsibilities often come with limited capacity, as the legislature tends to be stingy in its grants of authority or regularly preempts local laws with which it disagrees.

In the case of Charlottesville, state laws limiting the ability of the city to regulate guns or remove controversial war memorials have hampered the city’s efforts to respond to the white supremacist threat. At the same time, the absence of clear and unambiguous municipal rights—a right to local self-expression or a right to live without fear—means that the city cannot readily assert claims on its citizens’ behalf when the state is unresponsive or when private actors threaten the city’s well-being.

To be sure, the city’s well-being is not a legal concept. The city is a jurisdiction, a government, and a state actor for purposes of constitutional doctrine. It is also a place with a history and a people, however. It is an association, a polity, and a community. The law could treat Charlottesville as a substantive rights-holder; it could recognize the existence of municipal powers derived from the locally-governed. That we have fallen into the habit of treating the city as a mere jurisdictional entity, subject to the whims of the state, is unnecessary. And it means that the next time the white supremacists come to town, the city will still not have the tools to defend itself.

*Perre Bowen Professor, Joseph C. Carter, Jr. Research Professor of Law, University of Virginia School of Law. Many thanks to Jill Rubinger for research assistance, to Amanda Lineberry for fruitful discussions, and to the staff at the Virginia Law Review for their editorial support.

[1]2016 Charlottesville QuickFacts, U.S. Census Bureau, https://perma.cc/SP7U-4VQE.

[2]Charlottesville Police Dep’t, 2016 Annual Report 2 (2016), https://perma.cc/KC2M-PCJ6.

[3]2016 Charlottesville QuickFacts, supra note 1; Chris Suarez, Charlottesville City Council Votes to Remove Statue from Lee Park, The Daily Progress (Feb. 6, 2017), https://perma.cc/2TJN-WPGC.

[4]Jacey Fortin, The Statue at the Center of Charlottesville’s Storm, N.Y. Times (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-rally-protest-statue.html.

[5]See Joe Heim, Recounting a Day of Rage, Hate, Violence and Death, Wash. Post (Aug. 14, 2017), https://perma.cc/8VJU-U64N. See also Complaint at 46, Sines v. Kessler, No. 3:17-cv-00072 (W.D. Va. Oct. 12, 2017) [hereinafter Sines Complaint]; Complaint at 30, City of Charlottesville v. Penn. Light Foot Militia, No. 3:17-cv-00078-GEC (Va. Cir. Ct. Oct. 27, 2017) [hereinafter Penn. Light Foot Militia Complaint].

[6]See Sines Complaint, supra note 5, at 2; William J. Antholis, Two Blocks from the Culture War, The Miller Center (Aug. 13, 2017), https://perma.cc/7T65-KEGX; Paul Duggan, Militiamen Came to Charlottesville as Neutral First Amendment Protectors, Commander Says, Wash. Post (Aug. 13, 2017), https://perma.cc/HV2E-KDUK; Jon Sharman, Militia Force Armed with Assault Rifles Marches Through US Town Ahead of White Nationalist Rally, The Independent (Aug. 12, 2017), https://perma.cc/82WV-2K6S.

[7]Natasha Bertrand, Here’s What We Know About the ‘Pro-White’ Organizer of ‘Unite the Right,’ Who Was Chased out of His Own Press Conference, Business Insider (Aug. 14, 2017), http://www.businessinsider.com/who-is-jason-kessler-unite-the-right-charlottesville-2017-8 (“We’re trying to show that folks can stand up for white people. The political correctness has gotten way out of control, and the only way to fight back against it has been to stand up for our own interests.”);Vincent Law, The ‘Unite the Right’ Rally Is Going to Be a Turning Point for White Identity in America, AltRight.com (Aug. 5, 2017), https://perma.cc/JF4R-3UBS.

[8]Sines Complaint, supra note 5, at 20; Heim, supra note 5.

[9]Henry Graff, Richard Spencer Plans Return to Charlottesville, NBC 29 WVIR-TV (Oct. 25, 2017, 6:18 PM), http://www.nbc29.com/story/36573304/richard-spencer-plans-return-to-charlottesville; Matt Stevens, White Nationalists Reappear in Charlottesville in Torch-Lit Protest, N.Y. Times (Oct. 8, 2017), https://nyti.ms/2y2qM1d.

[10]See Gerald E. Frug, City Making: Building Communities Without Building Walls 3–4 (1999); Richard Schragger, City Power: Urban Governance in a Global Age 1–2 (2016). For a specific argument, see Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 Harv. C.R.-C.L. L. Rev. 1, 1 (2012).

[11]Commonwealth v. Cty. Bd. of Arlington Cty., 232 S.E.2d 30, 40–41 (Va. 1977).

[12]City of Clinton v. Cedar Rapids and Mo. River R.R. Co., 24 Iowa 455, 475 (1868).

[13]See Richard Schragger, The Attack on American Cities, ___ Tex. L. Rev. ___ (forthcoming 2018) (manuscript at 2–3), https://ssrn.com/abstract=3026142.

[14]In Virginia, the open carrying of certain handguns is prohibited in specific populous cities and counties. See Va. Code Ann. § 18.2-287.4 (2014). Virginia law also states that the prohibition against carrying a concealed weapon “shall not apply to a person who has a valid concealed handgun permit.” Id. § 18.2-308.01. The Virginia statute regarding firearm reciprocity states: “A valid concealed handgun or concealed weapon permit or license issued by another state shall authorize the holder of such permit or license who is at least 21 years of age to carry a concealed handgun in the Commonwealth.” Id. § 18.2-308.014.

[15]Frances Robles, As White Nationalist in Charlottesville Fired, Police ‘Never Moved,’ N.Y. Times (Aug. 25, 2017), https://www.nytimes.com/2017/08/25/us/charlottesville-protest-police.html.

[16]Penn. Light Foot Militia Complaint, supra note 5, at 21–22; see also Joanna Walters, Mistaken for the Military: The Gear Carried by the Charlottesville Militia, The Guardian (Aug. 15, 2017), https://perma.cc/4UMR-WLZD.

[17]See Kendall Burchard, Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests, 104 Va. L. Rev. Online 30, 31–32 (2018).

[18]Emily Alpert Reyes, L.A. Bans Pepper Spray, Baseball Bats, Weapons and Other Items at Protests, L.A. Times (Oct. 31, 2017), https://perma.cc/3UAU-ZXAQ.

[19]See Va. Code Ann. § 15.2-915 (2014). The Virginia legislature has not regulated the possession of rifles at rallies and protests, but maybe they should. See Martin London, Why States Should Ban Guns From Political Rallies, Time (Aug. 22, 2017), https://perma.cc/P68L-9KAZ.

[20]See Hunton & Williams, Independent Review of the 2017 Protest Events in Charlottesville, Virginia, Final Report, at 156–57 (Dec. 1, 2017), https://www.hunton.com/‌images/content/3/4/v2/34613/final-report-ada-compliant-ready.pdf.

[21]Suarez, supra note 3; Payne v. City of Charlottesville, No. CL 17-145, 2017 Va. Cir. LEXIS 323 at *1 (Oct. 3, 2017) (ruling on demurrer).

[22]Va. Code Ann. § 15.2-1812 (2012).

[23]1997 Va. Acts, ch. 587, at 1114.

[24]See Amanda Lineberry, Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal, 104 Va. L. Rev. Online 45, 47–48 (2018); see also Richard Schragger, Opinion, Is Charlottesville’s Robert E. Lee Statue Illegal?, Richmond Times-Dispatch (Aug. 30, 2017), https://perma.cc/F6AK-QZ83.

[25]Lineberry, supra note 24, at 49.

[26]Id. at 46–47.

[27]The proposed amendment eliminated the key conditional, prospective phrase (“[i]f such are erected”) and in its place added “the provisions of this subsection shall apply to all such monuments and memorials regardless of when erected” attempting to apply the war memorial statute retroactively. H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016) (proposed amendment); see also Governor’s Veto of H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016).

[28]See 1904 Va. Acts, ch. 29, at 62.

[29]Mark Jacob, How a Former Chicago Office Boy Built Charlottesville’s Gen. Lee Statue, Chi. Trib. (Aug. 18, 2017), http://www.chicagotribune.com/news/history/ct-charlottesville-robert-e-lee-statue-chicago-20170818-story.html (“The deed for McIntire Park described it as ‘a public park and playground for the white people of the City of Charlottesville.’”).

[30]S. Poverty L. Ctr., Whose Heritage? Public Symbols of the Confederacy 15, 35 (April 21, 2016), https://perma.cc/2W6G-6CKM.

[31]Markus Jachtenfuchs & Nico Krisch, Subsidiarity in Global Governance, 79 Law & Contemp. Probs. 1, 1 (2016) (“Subsidiarity is typically understood as a presumption for local-level decisionmaking, which allows for the centralization of powers only for particular, good reasons.”).

[32]Council of the City of Charlottesville, Council Chambers Minutes, at 12 (Jan. 17, 2017), https://perma.cc/T6LU-VX8P.

[33]See Alabama Memorial Preservation Act of 2017, 2017 Ala. Laws 354 (Alabama, the most recently passed restriction); see also Ga. Code Ann. § 50-3-1(b)(1) (2013) (Georgia); N.C. Gen. Stat. § 100-2.1(b) (2015) (North Carolina); S.C. Code Ann. § 10-1-165 (2009) (South Carolina).

[34]Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870, at 223 (1983); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057, 1065–66 (1980); see also Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 659–60 (1819) (dividing private corporations—which are founded by individual contributions of property—from public corporations—which are founded by the government without individual contributions).

[35]For a discussion of municipal speech, see David Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1641 (2006).

[36]Id. (“Courts and commentators alike have long dismissed the notion that the Speech Clause could serve as a source of constitutional protection for government speech.”).

[37]See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 319 (2010) (finding that the government may regulate corporate speech through “disclaimer and disclosure requirements, but it may not suppress that speech altogether”); First Nat’l Bank v. Bellotti, 435 U.S. 765, 784 (1978) (taking expansive view of corporation speech rights).

[38]See, e.g., Anderson v. City of Boston, 380 N.E.2d 628, 635–37 (Mass. 1978) (holding that Boston had no First Amendment right to disregard the state’s campaign finance statute restricting the city’s use of monies in a referendum campaign); City of Boston v. Anderson, 439 U.S. 1060 (1979) (dismissed for want of substantial federal question). For a discussion, see David J. Barron, The Promise of Tribe’s City: Self-Government, the Constitution, and a New Urban Age, 42 Tulsa L. Rev. 811, 819–23 (2007) (describing Boston’s argument that it should be entitled to the same speech protections as private corporations). It should be noted that though the Supreme Court has not directly addressed a state restriction on municipal political speech since Anderson (and did not do so in that case), the Court has held that municipal political advocacy is government speech, immune from challenges by dissenting taxpayers. See Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239, 2246 (2015) (insulating municipal government speech from challenge by dissenting taxpayers); Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (same). For an early theory of municipal speech rights, see Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863, 870 (1979). For a discussion of municipal speech rights, see Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 701 F. Supp. 2d 568, 598–99 (S.D.N.Y. 2010).

[39]Ira C. Lupu & Robert W. Tuttle, The Debate Over Confederate Monuments, Take Care (Aug. 25, 2017), https://perma.cc/XCJ3-6LL6.

[40]Id.

[41]Id.

[42]Id.

[43]See Micah Schwartzman & Nelson Tebbe, Charlottesville’s Monuments Are Unconstitutional, Slate (Aug. 25, 2017), https://perma.cc/MV97-S8DW; see also, e.g., McCreary Cty. v. Am. C.L. Union, 545 U.S. 844, 875–76 (2015) (finding that government messages that favor one religion over another or religion over irreligion are suspect under the Establishment Clause); Vill. of Arlington Heights v. Metro. Hous. Dev. Auth., 429 U.S. 252, 265 (1977) (holding the Equal Protection Clause bars government actions that have a racially discriminatory purpose or intent).

[44]For an argument along these lines, see Fagundes, supra note 35, at 1638, 1645–46; see also, e.g., Cty. of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1387, 1390 (E.D.N.Y. 1989) (“A municipal corporation, like any corporation, is protected under the First Amendment in the same manner as an individual.”), aff’d, 907 F. 2d 1295 (2d Cir. 1990).

[45]Sines Complaint, supra note 5, at 1–3, 88.

[46]Id. at 87, 89.

[47]Brian J. Gaj, Section 1985(2) Clause One and Its Scope, 70 Cornell L. Rev. 756, 756 (1985).

[48]S. Poverty L. Ctr., Ku Klux Klan: A History of Racism and Violence 14, 22 (6th ed. 2011), https://perma.cc/V3AZ-UNUE (“In some counties the Klan became the de facto law, an invisible government that state officials could not control.”).

[49]Penn. Light Foot Militia Complaint, supra note 5.

[50]Va. Const. art. I, § 13; Penn. Light Foot Militia Complaint, supra note 5, at 1.

[51]Penn. Light Foot Militia Complaint, supra note 5, at 74.

[52]Id. at 76.

[53]See id. at 26–27.

[54]Id. at 1.

[55]Id. at 4.

[56]See id. at 47–48; Sines Complaint, supra note 5, at 20.

[57]John Domen, Charlottesville Citizens Vent, Criticize Leaders at Community Recovery Town Hall, WTOP (Aug. 28, 2017), https://perma.cc/6VA3-CN3X; see Hunton & Williams, supra note 20, at 4–8.

[58]Schragger, supra note 13.

[59]Frug, supra note 34, at 1065–66.

Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal

I. Introduction

IN December 19, 2016, the City of Charlottesville’s Blue Ribbon Commission on Race, Memorials, and Public Spaces released a 328-page report to the City Council which, among other things, recommended either the removal or “transform[ation]-in-place” of the city’s monument of Robert E. Lee in what is now known as Emancipation Park.[1] On February 6, 2017, the Charlottesville City Council voted, three to two, to relocate the Lee Monument.[2] Two weeks later, a group of citizens and pro-Confederate activists filed a lawsuit against the city, Payne v. City of Charlottesville, requesting an injunction and alleging that the removal violated Va. Code § 15.2-1812, which regulates localities’ abilities to create and remove war memorials.[3] The injunction was granted and as litigation pended, white nationalists, led in part by University of Virginia alumni Richard Spencer and Jason Kessler, organized a massive rally to protest the monument’s removal.[4] The rally ended in the murder of Heather Heyer, the deaths of two police officers in a helicopter crash, and countless injuries.[5] On October 3, the Charlottesville state circuit court overruled the city’s demurrer and held that Va. Code § 15.2-1812 prevented the city from removing the Lee Monument, allowing the case to go to trial and the monument to remain standing.[6] The ultimate outcome of Payne v. City of Charlottesville will have a significant impact across the state, home to 96 of the country’s 700-plus Confederate monuments.[7]

Many legal issues have been raised in the weekend’s aftermath, from the First Amendment protection of hate speech[8] to the constitutionality of the monuments under the Fourteenth Amendment[9] to state prohibitions on “unlawful paramilitary activity.”[10] The heart of the issue—the reason why the Lee Statute still stands today—is the legal relationship between the Commonwealth of Virginia and its localities.

Virginia is a Dillon’s Rule state, meaning local governments may only exercise those powers expressly granted to them. This includes the authority to construct war memorials, which was first granted to all Virginia counties in 1904 and then all localities (adding cities and towns) in 1997 through various versions of Va. Code § 15.2-1812. Prior to the statute, localities were required to request a specific grant of authority—an Act of Assembly or Joint Resolution from the Virginia legislature—to construct such memorials. Without some form of authorization,[11] it was illegal for the locality to construct these monuments in a Dillon’s Rule state. Any restrictions applicable to the localities’ subsequent treatment of such monuments are governed exclusively by the state authority under which they were built,[12] unless those localities impose further restrictions on themselves, as Virginia statutes generally do not apply retrospectively.[13] Accordingly, monuments built in cities prior to 1997, such as Charlottesville’s 1924 Lee Monument,[14] are either unauthorized (ultra vires) or authorized by a specific Act of Assembly. The only restrictions on removal that are applicable to these pre-1997 monuments are those found within the original grant of authority, those imposed by localities on themselves, or the deeds associated with it—not Va. Code § 15.2-1812.

Only three authorities have directly weighed in on the question of whether Va. Code § 15.2-1812 applies to memorials created in cities prior to 1997: the state circuit court for the City of Danville,[15] the current Attorney General Mark Herring,[16] and the state circuit court for the City of Charlottesville,[17] respectively. They have reached varying conclusions, none of which are binding on other circuit courts across the state. When properly considering what the statute purports to authorize counties (and later cities) to do, it is clear that the statute cannot be read to apply to war memorials built in cities such as Charlottesville before 1997, as evidenced by the statute’s history, the text of the statute, and relevant Virginian common law on Dillon’s Rule and retroactivity.[18] At trial, the court should correct its previous reasoning, find Va. Code § 15.2-1812 to be inapplicable, and solely consider the legality of the removal based on other possible restrictions (if any) in balance with the city’s affirmative defenses.

II. The 1904 Statute Operates as a Specific, Prospective Grant Of Authority

The ability of Virginian cities to create and remove memorials has changed over time and is limited, first and foremost, by Virginia’s adoption of Dillon’s Rule,[19] an interpretive methodology for municipal authority which “limits the power of local governments to those expressly granted by the state or those necessarily implied or essential to express powers.”[20] Thus, “[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid.”[21] Should it be reasonably unclear whether a locality, such as a city or county, has a power or not, “the doubt must be resolved against the local governing body.”[22] In other words, if a city wants to create a memorial of any kind, it must first find the authority to do so in an existing state law or ask the state legislature for permission. Any ordinances enacted by a locality beyond the scope of its powers are invalid and any locality actions above and beyond what state law authorizes are illegal.[23]

Prior to any broader statutory authority regarding monuments, the state regularly granted such permission to localities through Acts of Assembly, which often included varying restrictions on removal or modification. For example, in 1901 and 1902, the General Assembly passed such acts for seven counties.[24] In 1903, it passed seven more.[25] Attorney General Mark Herring, in his own analysis, noted that “[s]ome of these Acts contain restrictions on the disturbance of the monument, others are silent, and . . . one Act contains such a restriction and a related Act does not.”[26]

In February 1904, seemingly in lieu of passing many additional individual acts of assembly, the General Assembly passed an act (the “Act”) to empower the circuit court of a county, with the support of the county’s board of supervisors, to authorize “the erection of a Confederate monument upon the public square of such county at the county seat thereof.”[27] More restrictive than some of the individualized grants of authority, the General Assembly provided that “thereafter,” counties “or any other person or persons whatever” could not “disturb or interfere” with such monuments nor “prevent the citizens of [the] county from taking all proper measures and exercising all proper means for the protection, preservation, and care of the same.”[28] Importantly, the grant of authority is limited exclusively to counties.[29] It is unclear why the state did not, at the same time, grant this power also to cities and towns. Overall, however, it is clear that the 1904 Act operated as a very specific kind of authority and did not mean to be comprehensive nor to apply to all war memorials built by counties.[30] It began merely as a grant of authority to only counties to build only Confederate monuments only in public squares.[31] Any other monument in any other place would need separate authorization outside of the statute.

In 1988, the General Assembly passed a law which sought to “amend and reenact” Va. Code § 15.1-270, a recodification of the Act. The 1988 legislation made two significant changes, though the prospective nature and limited scope of the Act stayed constant.[32] First, the statute granted counties the authority to construct memorials for the Revolutionary War, the War of 1812, and the Mexican War.[33] This made clear that counties wishing to build memorials to unlisted wars would still need to seek authorization from the state legislature. Second, the General Assembly changed the clause from its prior reading of “if such shall be erected it shall not be lawful thereafter”[34] to disturb or interfere with the memorials, to “[i]f such are erected, it shall be unlawful”[35] to disturb or interfere with them. The change simplified the statute’s language but did not remove the conditional, proscriptive phrasing. Thus, even taking into account the removal of the word “thereafter,” the effect of the statute remained the same: if a county chooses to erect a memorial under the authority of this statute, it cannot disturb or interfere with the memorial. Such a construction facially has no application to monuments erected previously under a different grant of authority.

In 1997, the General Assembly again changed the statute in several impactful ways. Most importantly for our purposes, the general grant of authority now applied to any “locality,” not just counties.[36] Next, the General Assembly expanded the list of conflicts for which a memorial could be created and moved this list to a different section of the statute.[37] Finally, the statute broadened the authority of both counties and cities by allowing localities to place memorials on any of their property, not just within their public squares.[38]

The most recent amendments to the statute were passed in 1998, which broadened the statute’s scope but kept its proscriptive format. That statute, codified at Va. Code. § 15.2-1812, now authorizes localities to erect “monuments or memorials for any war or conflict, or . . . any engagement of such war or conflict,” though it still includes a list of well-known conflicts as examples.[39] Additionally, the statute enables a locality to erect such monuments anywhere within its “geographical limits” and not just upon its own property.[40] The amendments also added a definition of “disturb or interfere,” which notably includes “removal” and “placement of Union markings or monuments on previously designated Confederate memorials” and vice versa, though it does not explicitly include relocation.[41] Most importantly, while the General Assembly yet again broadened the statute, it kept the same conditional, prospective phrasing.[42] The common sense reading of the statute remained, and still remains to this day, that the limitations on removal imposed by the statute apply exclusively to those memorials erected under the statute’s authority—not to those erected prior to the passage of the statute. Thus, memorials erected by cities prior to the 1997 (or 1998) amendments simply do not fall within the scope of the statute and are not prevented by the Act or its progeny from being removed or relocated.

III. This Prospective Grant of Authority Cannot Be Read to Apply Retroactively

The above reading of Va. Code. § 15.2-1812 makes it impossible to apply the removal restrictions to monuments built under other grants of authority.[43] If a monument was built under no grant of authority, the above statute, and the prior authorities, certainly do not retroactively authorize the illegally built statue and then restrict its removal. By the same token, the statute’s removal restrictions cannot be read to apply retroactively to monuments built under totally different authorities because Virginia’s common law on retroactivity doctrine and the statute’s legislative history prevent such a reading.

Since 1904, the rule in Virginia has been that the state’s statutes “are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question.”[44] The principle behind such a rule is to minimize the interference between new laws with old rules or contractual agreements. As recently as 2015, the Supreme Court of Virginia affirmed that the state “does not favor retroactive application of statutes” unless there is an “express manifestation of intent by the legislature.”[45] Additionally, “[i]t is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention.”[46] Moreover, courts are particularly cautious in finding a statute to have a retroactive effect on government actors:

Especially do courts shrink from holding an act retrospective when it affects public objects and duties, and, when it affects rights accrued and acts done by law for the public interest and necessities, it must be presumed that the law makers of the new act did not intend it to be retrospective, unless that intent be expressed in the language, or plainly appear upon the face of the act itself.[47]

Given the weight of the restriction imposed by Va. Code. § 15.2-1812 on localities, the conditional and prospective phrasing of the statute’s removal clause, and the public nature of the statues at issue, the language of the statute and the legislative intent are not manifest enough for any court to hold that the statute applies retroactively. Even if a court should find that the language of the statute is ambiguous or debatable, the court’s subsequent course of action is clear: without the language or intent being “manifest beyond reasonable question,”[48] the court must find that the statute does not apply retroactively.

This limiting interpretation of the statute is further evidenced by the attempt of the Virginia General Assembly to enact a bill which explicitly extended the protections of the statute retroactively to war memorials built under other grants of authority. A proposed amendment sought to eliminate the key conditional, prospective phrase (“[i]f such are erected”) and added: “The provisions of this subsection shall apply to all such monuments and memorials, regardless of when erected.”[49] While in all other renditions of the statute[50] the restrictions on removal are tied to the grant of authority, this draft detached them from each other, giving the restrictive clause independent operation. Such a sentence would effectively separate the removal restrictions from the general grant of authority.

The amendment was proposed during the 2016 session, after the October 2015 decision in Danville and the July 2015 removal of the Confederate Flag from state grounds in South Carolina, a response to the tragic murder of nine black Americans by white supremacist Dylann Roof.[51] It was ultimately vetoed by Virginia Governor Terry McAuliffe. The Governor defended his veto as follows:

There is legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove, or alter certain symbols of the Confederacy. These discussions are often difficult and complicated. They are unique to each community’s specific history and the specific monument or memorial being discussed. This bill effectively ends these important conversations.

* * *

I am committed to supporting a constructive dialogue regarding the preservation of war memorials and monuments, but I do not support this override of local authority.[52]

The Governor’s justifications summarize important policy arguments for not erroneously construing the current statute to apply retroactively to grants of authority independent of the statute. Note also that the City of Charlottesville Blue Ribbon Commission on Race, Memorials, and Public Spaces relied on this specific legislative history when recommending that the City Council remove or transform the city’s Lee Monument.[53]

In another case,[54] the Danville circuit court properly adhered to state precedent and the legislative history when it held that Va. Code § 15.2-1812 was inapplicable to a monument, which commemorated the Sutherlin Mansion as “the Last Capitol of the Confederacy,” for two reasons: first, because the statute did not apply retroactively, and, second, because the memorial at issue was not a war memorial. In its brief, three-page opinion, the court succinctly concluded that, “[a]s a matter of law, Virginia Code § 15.2-1812 does not apply retroactively to the monument at issue in this litigation, which was donated to the City of Danville in 1994 and erected . . . in 1995.”[55] The court’s focus in this holding was clearly on the years that the monument was received and formerly established. Given that both of these actions occurred prior to the statute’s inclusion of all localities—not just counties—in 1997, the statute was not applicable.

In contrast, when the Charlottesville Circuit Court overruled the city’s demurrer in Payne v. City of Charlottesville, it misunderstood the operation of the statute and did not adhere to the principle established in Arey that statutes generally only operate prospectively. Instead the court decided that the statute applied retroactively, based on the “content and wording of the statute itself,” as well as “[l]ogic and common sense.”[56] The court found that the 1997 amendment of the statute was “expanding protections as well as the power and authority originally applicable to the counties,” but did not recognize that those protections were only operative to actions taken from that same grant of authority.[57]

This reasoning runs counter to Arey, which establishes that the court cannot read in what it interprets to be the “common sense” reading of the statute when the question is whether or not the statute applies retroactively. Instead, the court’s outcome must be dictated by “the face of the instrument or enactment” that is “manifest beyond reasonable question.”[58] The court’s insistence that its interpretation is common sense simply does not change the face of the statute nor its contradictory legislative history, which must govern under Arey. In other words, the lack of legislative history supporting the court’s interpretation and the plain language of the statute dictate that the court only applies it to monuments which were built under its authority, which could not have included the 1924 Lee Monument in Charlottesville, which is a city.

The Charlottesville Circuit Court placed substantial reliance on the outcome of Sussex Community Services Association v. Virginia Society for Mentally Retarded Children, Inc., which said, in dictum, that “we have never imposed a requirement that any specific word or phrase be used in order to support a finding of clear legislative intent or retroactive application.”[59] The key difference between the statute at issue in Sussex and the one at issue here is the word “any” and the lack of a conditional, prospective clause. The statute in Sussex read: “A family care home, foster home, or group home . . . shall be considered for all purposes residential occupancy by a single family when construing any restrictive covenant which purports to restrict occupancy or ownership of real or leasehold property to members of a single family.”[60] If that statute were to apply prospectively—and thus mimic the structure of Va. Code § 15.2-1812—the Sussex statute would read: “If a restrictive covenant is formed which purports to restrict occupancy or ownership of real or leasehold property to members of a single family, then a family care home, foster home, or group home shall be considered for all purposes residential occupancy by a single family.” Put another way, if Va. Code § 15.2-1812 were written similarly to the statute at issue in Sussex, it would read like the version vetoed by Governor McAuliffe in 2016.[61] The legislature chose a different construction, and the court should not read intent into the statute, no matter how “inescapable,” “impossible,” or nonsensical that may seem to a particular court.[62]

Finally, in Payne the Charlottesville Circuit Court made a great deal out of a general state policy to protect war memorials even when they may fall out of favor within a locality,[63] but this general policy was clearly defeated when a retroactive version of the statute was vetoed by Governor McAuliffe in 2016. This is further demonstrated by the statute’s evolution, which consistently limited itself only to those conflicts that it saw as important.

Further, when the Act was originally passed, it only applied to Confederate memorials.[64] As noted previously, the amended 1988 statute was expanded to include the Revolutionary War, the War of 1812, and the Mexican War (in addition to the previously included World Wars I and II, the Korean War, and the Vietnam War).[65] Such an ad hoc addition of conflicts, which specifically favored some conflicts over others, does not reflect a policy of protecting all war memorials, especially those that may fall out of favor in a particular locality.

IV. Other Restrictions On Removal

Even if a statue was not constructed under the authority of Va. Code § 15.2-1812, other restraints on removal may exist, including locality-specific constraints and monument-specific constraints. Localities have restricted their own abilities to remove or relocate such memorials through, for example, local ordinances, charters, or other planning documents. For example, the City Attorney Allen Jackson reportedly advised Richmond’s City Council that the four Confederate statues on Monument Avenue could not be removed due to a provision of Richmond’s City Charter and its master plan.[66]

Monument-specific constraints include those found in transfer instruments and grant programs. As summarized by Attorney General Herring, “a monument may have been donated to the locality subject to reversionary terms or conditions in the transfer instrument triggered by the locality’s attempt to remove or disturb the monument,” or “a locality might have received funding for the acquisition, maintenance, preservation or enhancement of the monument through a grant program that places restrictions on any alteration of the monument.”[67] However, it is critical to realize that any constraints placed on the city through transfer instruments or grant programs are obligations only to the original parties in the transaction, creating an entirely different procedural dynamic and significantly limiting the population with standing to challenge the city’s actions.

V. Conclusion

In the Commonwealth of Virginia, under Dillon’s Rule, the most appropriate reading of the statute is as a prospective and historically limited grant of authority which comes with embedded restrictions. Every statue erected by a locality in the Commonwealth needs authorization,[68] and many localities derived authority to build war memorials from the 1904 statute. However, this was simply not the case in cities, since the statute narrowly applied only to Confederate monuments in county public squares for eighty-four years. Indeed, the statute did not apply to cities at all for nearly a century. From its inception and throughout its amendments, the statute’s scope remained limited and its conditional, prospective phrasing remained constant. The statute’s limited scope and phrasing dictate a reading that does not have any bearing on the removal of statues built under other grants of authority. In order to apply these restrictions retroactively to illegally-built statues or to statues built under other grants of authority, the state legislature would need to make it manifestly clear on the face of the statute that it is meant to apply retroactively. Thus, as a Dillon’s Rule state a careful reading of Va. Code § 15.2-1812 and its history yields the appropriate result: Va. Code § 15.2-1812 has no bearing on war memorials built in cities prior to 1997 and does not prevent their removal.

*J.D. Candidate 2019, University of Virginia School of Law. I would like to thank Professor Richard Schragger for his invaluable guidance and edits; Professors Molly Brady and Ben Doherty for their encouragement and research assistance; and my family for their open minds, honest conversations, and unconditional support.

[1]City of Charlottesville Blue Ribbon Comm’n on Race, Memorials, and Pub. Spaces, Report to City Council 8–10 (Dec. 19, 2016), https://perma.cc/C2F5-DWCX.

[2]Chris Suarez, Charlottesville City Council Votes to Remove Statue from Lee Park, Daily Progress (Feb. 6, 2017), https://perma.cc/W9PY-CCB2.

[3]Complaint at 9–11, 16, Payne v. City of Charlottesville, No. 17-145 (Va. Cir. Ct. Feb. 2017).

[4]Payne v. City of Charlottesville, No. CL 17-145, 16 (Va. Cir. Ct. Oct. 3, 2017) (ruling on demurrer); Vincent Law, The ‘Unite the Right’ Rally Is Going To Be A Turning Point For White Identity In America, AltRight.Com (Aug. 5, 2017), https://perma.cc/CN8G-MVQL.

[5]Benjamin Hart & Chas Danner, Three Dead and Dozens Injured After Violent White-Nationalist Rally in Virginia, N.Y. Mag. (Aug. 13, 2017), https://perma.cc/6EFS-M7F8.

[6]Payne, No. CL 17-145 at 16.

[7]S. Poverty L. Ctr., Whose Heritage? Public Symbols of the Confederacy 10–11 (April 21, 2016), https://perma.cc/43SU-TGLF.

[8]Leslie Kendrick, How to Defend the Constitution When the KKK Comes to Town, CNN: Opinion (July 12, 2017), https://perma.cc/E9H8-VCW7.

[9]See Micah Schwartzman & Nelson Tebbe, Charlottesville’s Monuments Are Unconstitutional, Slate (Aug. 25, 2017), https://perma.cc/7HZC-W5HR.

[10]Laura Jarrett, Charlottesville Suing to Stop Private Militias at Future Rallies, CNN (Oct. 12, 2017), https://perma.cc/YH2E-9JCY.

[11]Other grants of authority could have been read to include the construction of war memorials in public spaces. In 1908, that the General Assembly granted cities and towns the authority to “establish and maintain parks, playgrounds and boulevards.” 1908 Va. Acts ch. 349. Whether this would or would not have empowered cities and towns to create war memorials, given the state’s adoption of Dillon’s Rule, is beyond the scope of this analysis. However, Professor Richard Schragger’s analysis of the ability to create and beautify parks as applied to the Charlottesville statute suggests that such a power included the ability to create war memorials within those parks. Richard Schragger, Opinion, Is Charlottesville’s Robert E. Lee Statue Illegal?, Richmond Times-Dispatch (Aug. 30, 2017), https://perma.cc/‌LXY7-268M.

[12]The controversies on August 11th and 12th demonstrate the benefits of local control. The city democratically decided to remove the statue, and the potential of the state law to prevent its removal has created a window of uncertainty filled by violence and pain. Still, Dillon’s Rule is the law in Virginia. See infra Part II. This Essay proceeds within that framework and argues that, even within it, removal is still a viable option for many statues.

[13]See brief discussion infra Part III and notes 62–63 and accompanying text.

[14]City of Charlottesville, History and Gardens of Emancipation Park, https://perma.cc/7WPP-6Z97.

[15]Heritage Preservation Ass’n v. City of Danville, No. CL15000500-00, slip. op. at 2 (Va. Cir. Ct. Nov. 7, 2015).

[16]Letter from Mark R. Herring, Att’y Gen. of Va., to Julie Langan, Dir., Va. Dep’t of Historic Res., concerning § 2.2-505 (Aug. 25, 2017), https://perma.cc/M24G-CUZ8 [hereinafter “Herring Letter”].

[17]Payne v. City of Charlottesville, No. CL 17-145, at 7 (Va. Cir. Ct. Oct. 3, 2017) (ruling on demurrer).

[18]See discussion infra Part III.

[19]The namesake of Dillon’s Rule is Judge Forest Dillon, who authored an important treatise on the law of municipalities and articulated the rule as follows: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation,—not simply convenient, but indispensable.” Dillon’s Rule: The Case for Reform, 68 Va. L. Rev. 693, 693–94 (1982) (emphasis omitted) (citing 1 John F. Dillon, Commentaries on the Law of Municipal Corporations § 237 (5th ed. 1911)).

[20]TransDulles Ctr. v. USX Corp., 976 F.2d 219, 224 (4th Cir. 1992).

[21]City of Chesapeake v. Gardner Enter., 482 S.E.2d 812, 814 (Va. 1997).

[22]Bd. of Supervisors v. Reed’s Landing Corp., 463 S.E.2d 668, 670 (Va. 1995).

[23]For a more thorough discussion of municipal and state powers, see generally Richard C. Schragger, When White Supremacists Invade A City, 104 Va. L. Rev. Online 58 (2018).

[24]See 1901 Va. Acts ch. 38 (Appomattox); 1902 Va. Acts ch. 176 (Essex); id. at ch. 177 (Isle of Wight); id. at ch. 183 (Smyth); id. at ch. 332 (Louisa); id. at ch. 386 (Chesterfield); id. at ch. 427 (Madison).

[25]See 1903 Va. Acts ch. 58 (King William); id. at ch. 83 (Amelia); id. at ch. 116 (Bedford); id. at ch. 117 (Campbell); id. at ch. 130 (Botetourt); id. at ch. 307 (Greensville); id. at ch. 465 (Mecklenburg). These acts fall within what the Southern Poverty Law Center identified as the first peak in Confederate memorialization, from 1900 to 1914. S. Poverty L. Ctr., supra note 7, at 14–15.

[26]Herring Letter, supra note 16, at 5.

[27]1904 Va. Acts ch. 29.

[28]Id.

[29]Id.

[30]It is not clear exactly why the statute was passed in 1904, nor why its grant of authority was so limited. For greater discussion about the state’s intentions, see generally Schragger, supra note 23.

[31]1904 Va. Acts ch. 29.

[32]1988 Va. Acts ch. 284; Herring Letter, supra note 16, at 2.

[33]1988 Va. Acts ch. 284; contra 1904 Va. Acts ch. 29. Prior amendments and recodifications had previously added World War I, World War II, and other wars.

[34]1988 Va. Acts ch. 284.

[35]Id.

[36]1997 Va. Acts ch. 587 at 1114.

[37]Id.

[38]Id.

[39]Va. Code Ann. § 15.2-1812 (2017).

[40]Id.

[41]Id.

[42]Id. (“If such are erected, it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation and care of same.” (emphasis added)).

[43]As discussed above, prior legislative acts also could not be read as a source for this authority. See supra notes 19–42 and accompanying text.

[44]Arey v. Lindsey, 48 S.E. 889, 890 (Va. 1904).

[45]Bailey v. Spangler, 771 S.E.2d 684, 686–87 (Va. 2015).

[46]Ferguson v. Ferguson, 192 S.E. 774, 777 (Va. 1937).

[47]City of Richmond v. Supervisors of Henrico Cty., 2 S.E. 26, 30 (Va. 1887)

[48]Arey, 48 S.E. at 890.

[49]H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016) (proposed amendment).

[50]See supra notes 19–42 and accompanying text.

[51]Stephanie McCrummen & Elahe Izadi, Confederate Flag Comes Down on South Carolina’s Statehouse Grounds, Wash. Post (July 10, 2015), https://perma.cc/FZ44-4MLF; S. Poverty L. Ctr., supra note 7, at 10–11.

[52]Governor’s Veto of H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016).

[53]City of Charlottesville Blue Ribbon Comm’n, supra note 1, at 22.

[54]Heritage Preservation Ass’n v. City of Danville, No. CL15000500-00 (Va. Cir. Ct. Nov. 7, 2015).

[55]Id. at 2.

[56]Payne v. City of Charlottesville, No. CL 17-145, at 4 (Va. Cir. Ct. Oct. 3, 2017).

[57]Id.

[58]Arey v. Lindsey, 48 S.E. 889, 890 (Va. 1904); see also Gloucester Realty Corp. v. Guthrie, 30 S.E.2d 686, 688 (Va. 1944) (noting that statutes are presumed to be prospective unless “plainly so intended”).

[59]467 S.E.2d 468, 470 (Va. 1996).

[60]Id. at 469 (emphasis added).

[61]See supra notes 52–60 and accompanying text.

[62]Payne, No. CL 17-145 at 4–6.

[63]Id. at 4–5 n.2.

[64]1904 Va. Acts ch. 29.

[65]1988 Va. Acts ch. 284.

[66]Jeremy Lazarus, City Attorney: City Council Has No Authority to Remove Confederate Statues, Richmond Free Press (Oct. 6, 2017), https://perma.cc/9JA7-XQ7C. A closer look at the actual text of the city charter calls this conclusion into question, though. See Richmond City Charter, § 17.05 (2006) (“It shall be the further duty and function of the Commission to preserve historical landmarks and to control the design and location of statuary and other works of art which are or may become the property of the City, and the removal, relocation and alteration of any such work; and to consider and suggest the design of harbors, bridges, viaducts, airports, stadia, arenas, swimming pools, street fixtures and other public structures and appurtenances.” (emphasis added)).

[67]Herring Letter, supra note 16, at 5.

[68]See supra notes 19–22 and accompanying text.

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