States’ Rights: Not Federal Rights, Not Local Rights

from the NY Times, 6 July 2017. . . 


Hundreds of protesters lined the balconies of the Texas state Capitol rotunda in Austin on May 29, the last day of the legislative session, to protest a new state law banning sanctuary cities.
Credit: Ricardo Brazziell/Austin American-Statesman, via Associated Press

At a time when Democrats are locked out of power from the White House, both chambers of Congress, the majority of governor’s offices and three-fifths of the country’s state houses, their ideas at least have one reliable outlet. Democrats still control most of the country’s biggest cities.

Even that power center, though, is increasingly under attack.

In the last few years, Republican-controlled state legislatures have intensified the use of what are known as pre-emption laws, to block towns and cities from adopting measures favored by the left. The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.

The pattern has worsened a different kind of partisan war beyond Washington, where the political divide cuts not just across the aisle, but across different levels of government. As standoffs between red states and blue cities grow more rancorous, the tactics of pre-emption laws have become personal and punitive: Several states are now threatening to withhold resources from communities that defy them and to hold their elected officials legally and financially liable.

“There are all sorts of legitimate ways we can divide power,” said Nestor Davidson, a law professor at Fordham. But if local officials risk personal fines, lawsuits and lost wealth for their communities over policy disagreements, he said, that changes the rules of the game. “That has the potential to change what it means to be a government official, to change what it means to elect people.”

States have banned local ordinances on minimum wage increases, paid sick days and lesbian, gay, bisexual and transgender rights. They’ve banned sanctuary cities.” They’ve even banned a number of bans (it’s now illegal for Michigan cities to ban plastic bags, for Texas towns to ban fracking).

A law passed in Arizona last year threatens to withhold shared state revenuefrom local governments that adopt ordinances in conflict with state policy. Texas’ new sanctuary city law imposes civil fines as high as $25,500 a day on local governments and officials who block cooperation with federal immigration requests. And it threatens officials who flout the law with removal from office and misdemeanor charges.

Texas’ four largest cities are now suing the state in response. Gov. Greg Abbott of Texas, a Republican, has been a vocal advocate for state laws that he says are necessary to protect individual liberty from local government overreach. When cities overstep their bounds, he said this year, they “should have to pay a price for it.”

Where States Curb Local Control

Go to the linked article to see graphics that show “Policies in these states block or limit local laws.”

These new pre-emption laws echo 19th-century “ripper bills,” legal scholars say, state laws that ripped control from cities over their finances, utilities, police forces and local charters. The backlash against them helped spur the movement for local control in the United States. Now home rule is under a “troubling nationwide assault,” warn municipal lawyers and law professors, including Mr. Davidson, in an amicus brief supporting another legal fight, in Cleveland.

There, Ohio passed a law blocking a longstanding requirement that city construction contracts hire some local workers. Cleveland, in other words, was trying to ensure that local projects created local jobs, alleviating local poverty.

Both state legislators and municipal groups agree that pre-emption laws have proliferated in the last few years in number and in the breadth of issues they touch. They disagree on who started the fight: states in stripping municipal power, or cities in seizing new roles that weren’t theirs to begin with.

“It is about power, and I think it’s about wielding power at any cost. That’s it,” said Andrew Gillum, the Democratic mayor of Tallahassee, Fla., who formed a national group to fight pre-emption laws this year. Now that Republicans control both legislative chambers in 32 states and the governor’s office on top of that in 25, he said, their slogans lionizing local government ring hollow. “They only mean that,” Mr. Gillum said, “to the extent that they’re in control.”

The contrast between what’s happening in cities and the decentralized philosophy Republicans have championed from Washington is striking. The supremacy of local control is central to Republican plans for undoing Obamacare, rolling back regulations and leaving the federal minimum wage unchanged (wages, the party said in its platform last year, should be handled at the state and local level).

As House Speaker Paul Ryan has put it: “Government closest to the people governs best.”

That government, many local legislators clarify now, is the state.

“We’re the United States of America. We are not the United Towns of Florida. We’re not the United Counties of Florida,” said Randy Fine, a Republican state representative there who sponsored a bill this year that would have broadly blocked local laws regulating “businesses, professions and occupations.”

He said: “The state is the nexus of government in this country. The states created the federal government, and the states created local government.”

The timing and language of many pre-emptions, though, suggest that while they’re cast as broad state standards, they’re often aimed at specific cities.

North Carolina’s so-called bathroom bill sought to squash a local ordinance in Charlotte adding gender identity to the city’s nondiscrimination policy. The repeal passed by the state this year still bars local communities from adopting such protections until at least 2020.


Gov. Eric Greitens of Missouri taking questions after an anti-abortion rally at the Statehouse in Jefferson City on June 14. Lawmakers were called back to special session by the governor with the intent of modifying abortion laws in Missouri. CreditDavid Carson/St. Louis Post-Dispatch, via Associated Press

St. Louis this year passed an ordinance banning employer and housing discrimination against women who use contraception or have abortions. Gov. Eric Greitens of Missouri, a Republican, called the state legislature back into special session in June in part to undo that law (it would turn St. Louis, he said, into an “abortion sanctuary city”).

In Alabama, Birmingham is fighting a law banning cities from setting their own minimum wages. Civil-rights groups say the pre-emption — enacted last year by a predominantly white state legislature the same week the city passed its ordinance — violates the voting rights of residents in a majority-black city.

In Texas, Mr. Abbott has called a special session for this month. On the agenda: proposals that would block cities from regulating trees on private land, restricting cellphone use in cars, and allowing transgender residents to use the bathroom matching their identity.

“It’s like quick-fire,” said Lisa Graves, executive director of the Center for Media and Democracy, which tracks pre-emption bills. “Once it passes some place, other legislatures go, ‘Oh, we could just pre-empt all of this.’ ”

Lori Riverstone-Newell, a political scientist at Illinois State University, traces modern escalation of pre-emptions to the 1980s — when the tobacco industry began to back state laws barring antismoking ordinances.

In the 1990s, the National Rifle Association followed the same state strategy with gun-control laws. More recently, the industry-backed American Legislative Exchange Council, which advocates free-market state policies, has promoted model state legislation preventing local governments from adopting what it considers a patchwork of regulatory burdens on businesses.

Then after the 2010 elections that swept Republicans to power in many states, Dr. Riverstone-Newell says the pace of such laws accelerated.

But where opponents point to industry influence at state houses, backers of pre-emption make a similar argument: Environmental and labor lobbies are pushing local bag taxes or minimum wages, they say, not voters engaged in some pure form of local democracy.

“It’s not illegal, but we should also not think it’s organic,” said Jon Russell, a councilman in Culpeper, Va., who leads a group of local-government officials within the American Legislative Exchange Council. “I’ve been a city councilman for almost 10 years, and I can tell you those kinds of issues are not organic. You don’t have a group of ladies sitting around in their living room wringing their hands about plastic bags or about fracking.”

He also accuses Democrats of their own hypocrisy: When blue states raise the minimum wage statewide, Democrats cheer those laws as progress.


A coalition of groups rallied at the Minnesota State Capitol in May to encourage Gov. Mark Dayton, a Democrat, to fend off new state laws that would block cities from setting their own minimum wage and paid sick leave policies.
Credit:  Glen Stubbe/Star Tribune, via Associated Press

The new punitive nature of pre-emptions, though, has escalated the fight beyond the usual partisan bickering. “It’s intended to send a chilling effect,” said Mr. Gillum, the Tallahassee mayor.

In Florida, local officials who run afoul of the state’s pre-emption on gun control are personally liable in court. Mr. Gillum and other city commissioners were sued by gun-rights groups over an old ordinance the city never repealed — but that no longer had effect — making it illegal to shoot guns in public parks. An appellate court rejected the lawsuit, but Mr. Gillum and other local officials had to defend themselves without public money (they were able to get pro bono legal help).

“It is intended to put everyone across this state and across this country where these efforts are taking place on notice: Don’t come near it,” Mr. Gillum said of issues like gun control and immigration. “And if you do, we’ll come after you personally, we’ll come after your government, we’ll come after the very survivability of your community by cutting off resources to you.”

About Bruce

Work for sustainable development of small islands and the Chesapeake Bay; ex-Peace Corps (Volunteer and staff) in LA & Caribbean; cruised Caribbean on S/Y Meander for three years; like small tropical islands, French canals, Umbria, Tasmania, and NZ. Married 52 years to the late Kincey Burdett Potter (see President of the now-sunsetting Island Resources Foundation.
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