“PREEMPTION” LAWS ARE not new, nor are they necessarily about undoing local legislation. But with some notable exceptions, past preemption laws have generally enforced what can be called “minimum preemption”: They force localities to do something where they might otherwise have done little or nothing. As it’s often said, they set a “floor” for regulation. For instance, the federal government has been setting minimum standards of environmental protection for years, preempting the states from allowing lower environmental standards. Similarly, states often set a floor for various local regulations, whether regarding pollution, trade licensing, gun ownership, or other matters.
Most current preemption laws, by contrast, are what one might call “maximum preemption.” These laws aren’t about setting minimums; instead, they prohibit local regulation. States have prevented localities from creating paid sick leave requirements for businesses, or raising the minimum wage. Many who oppose these measures blame their proliferation on the conservative American Legislative Exchange Council, known as ALEC, which has drafted “model” preemption bills for state lawmakers to use. “Pretty much anything you can think of that matters to the American family is under assault by local preemption,” says Mark Pertschuk, the director of Grassroots Change, which fights preemption laws around the country.
Earlier this year, a fight in North Carolina over Charlotte’s anti-discrimination ordinance cast such maximum preemption laws into the national spotlight. The Charlotte City Council had passed a measure extending civil-rights protections for its LGBT community. The policy also allowed transgender individuals to use the bathroom that corresponds with their gender identity rather than with their biological sex. Including gay and transgender people in anti-discrimination ordinances has become a standard business-friendly move; nationwide, 225 cities and counties have passed similar measures, in part to attract businesses. While Republican Governor Pat McCrory and state legislature leaders threatened to intervene in Charlotte, Charlotte Mayor Jennifer Roberts, an advocate of the measure, wasn’t overly concerned. “I thought they’d make a big noise about it but they’d recognize it was just Charlotte, it’s a progressive city, and they didn’t need to come in and change anything because it would jeopardize the economy,” she says.
But when the state Republicans responded, they sent shockwaves around the country by passing a maximum preemption measure that invalidated all local anti-discrimination ordinances, including those protecting women and racial minorities. Not only did they force transgender people to use public bathrooms based on their reproductive organs; for good measure, they also rolled a provision into the bill that forbade any North Carolina city from increasing the minimum wage.
There’s a very specific reason why conservatives fetishize state government, even to the point of calling for the repeal of the Seventeenth Amendment. All the talk about devolution that came out of the 90s stops right at the state capitol. It’s not about principle. It’s about conservative control. The federal government is too big for corporations or movement conservatives to easily control. Cities are too small. States are just right. State legislators can be bought off for incredibly small amounts of campaign donations. So making the federal government powerless, unless it wants to do corporate bidding, and making the cities powerless is part the conservative game to maintain power. And it’s been that way since at least the 1930s, when corporations complained about federal control and wanted power to reside at the state level. That’s what these wars on liberal cities are about in red states. Some of these cases, like the Denton fracking ban or Austin’s rejection of Uber, are about corporate control, others like HB 2 in North Carolina, are not. But for each type of conservative group, the state is where they see power residing precisely because that’s where it’s easiest for them to control that power.