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Cities versus States



This is a good piece on the battles in conservative states between their liberal enclave cities and the right-wing extremists who control the statehouse.

“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.

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  • Dilan Esper

    “Cities are too small” isn’t quite right. It’s more “cities contain concentrations of liberals”.

    But yes, as Scott likes to say, nobody believes in federalism.

    • Jon_H11

      I think “cities are too small” is accurate. It’s much easier to inform and organize interest groups in a city, and it’s easier to personally sway council members and hold them accountable. At the state level such advocacy requires too much money for true “grass roots” organizations to be effective.

    • delazeur

      I dunno, it’s a lot easier for ALEC to keep an eye on the 30ish legislatures they can influence than the 100-300 largest cities in the country.

      • BiloSagdiyev

        Yes. Cities are too numerous.

      • ThrottleJockey

        Yeah, I initially had the same thought as Dilan, but you’re right, scalability is a thing.

      • ijkcomputer

        Right. The multitude of cities is just too much work.

        It’s also an information-gap thing. Federal electeds and issues get some attention; voters have opinions about their president, and sometimes even their congressman. Local electeds and issues get that too – because there’s a hometown newspaper, and because people feel direct contact with it in their lives. You never get a more obsessively informed town hall audience than when you’re doing a small-town mayor’s race. “What about that pothole on 13th Street, hunh?”

        But the state legislature, often tucked away in the third-biggest city in the state somewhere? Forget it. Nobody is paying any attention whatsoever.

    • Pseudonym

      Cities are too urban. And “urban”.

    • los

      cities contain concentrations of liberals
      That looks like the stronger reason, to me.
      Cost:benefit would scale, so hijacking city or school board is cheap but has less value than hijacking state level.
      And as Erik wrote, “instantly”completely hijacking the federal government costs too much.

  • so-in-so

    I suppose IF (big if) the GOP loses some state houses that they will want to be able to act a more local level, and curse the control of those big statehouse liberals again?

    Might be interesting to here the talk in Richmond GOP circles going forward.

    • Dilan Esper

      People on both sides will assert exactly as much federalism or local control as suits their current interests.

      • los

        pursuit of power, etc., but “conservative” pundits fetishize “states rights” (in realtion to federal government). (more) local control is too similar a concept to oppose, while hypocritically promoting “states rights”.

  • cleek

    NC also has a preemptive fracking law, courtesy of McCrory (now -9 in polling) and the same GOP lege that brought us HB2.


    • kmannkoopa

      As I mention below, NY has a preemptive anti-fracking law.

      I hate the both sides do it argument when it isn’t true, but it certainly true here.

      • Pseudonym

        If the concern over fracking is groundwater contamination, or earthquakes, or climate change, then the negative externalities don’t stop at the city border.

  • Johnnie

    They’ll preempt larger governing bodies from doing stuff too, if it might benefit a liberal city. The Wisconsin legislature outlawed regional transit authorities out of fear that 1. someone might want to build a serviceable light rail line for the Milwaukee metro area and 2. that Dane County’s population growth would accelerate even further.

  • Jeff R.

    And if your state legislature is too liberal, you can go the referendum route. Back in 1994 (I had to look it up, didn’t realized it was that long ago), Massachusetts voters passed a referendum that eliminated rent control state wide. Only two cities, Boston and Cambridge, had rent control at all. Only about 10% of the population even lived in a city that had rent control but the whole state got to vote.

    • Dilan Esper

      That’s a terrible argument. Rent control protects incumbents and harms outsiders who want to move in. Your argument simply ensures that only the incumbents get a say.

      • The idea that those who oppose rent control are friends of the everyday person is utterly laughable.

        • Dilan Esper

          That’s a pure ad hominem argument. No analysis of rent control as policy or my point that it protects incumbents. Just a claim that because opponents are douchebags, the policy must be good.

          • I mean, if you want to describe yourself as a douchebag, go ahead.

          • delazeur

            One, when has Loomis ever posted a detailed rebuttal in the comment section? You can’t expect one from him.

            Two, your concern about logical fallacies at the expense of the actual topic at hand makes me think you’ve been poisoned by the rationalists.

            • Dilan Esper

              It would be a much more productive discussion if Erik would tell us whether he agrees that rent control protects incumbents and what follows from that conclusion.

          • Aardvark Cheeselog

            ad hominem

            That word, I do not think it means what you think it means.

        • Brett

          No, but that doesn’t make them wrong.

      • Jeff R.

        I interpreted Erik’s argument as that if you can’t get a city to do what you want, get the state legislature to pre-empt the city. My argument is that if the legislature won’t, propose a referendum. I didn’t discuss the merits of rent control, only the process of how it was repealed. Why is that a terrible argument?

        I re-read the article I skimmed over. By 1994 only Cambridge had an effective rent control law; Boston allowed decontrol for vacant units and it had been repealed in all other cities. Rent control opponents first proposed a city referendum (which failed), then challenged rent control in the courts and finally proposed the state wide referendum that won.

        • Dilan Esper

          Sure, but you also implied there was something wrong with outsiders voting on the issue. My point is that this is exactly the sort of issue that should be decided on a higher level than city government, because non-incumbents should get to participate.

          • Jeff R.

            Do you have a list of things that can be decided by cities and which can be pre-empted by states? Paid sick leave? Minimum wage? Which public bathroom transgender people can use?

            • Dilan Esper

              Things that local voters will do that punish outsiders should be decided at a higher level.

              • lunaticllama

                This is a distinction without a difference. For example, all local zoning decisions affect outsiders. If a city decides not to allow a mall to be built or a corporation to build an office park, outsiders will be punished by having no mall or job or having them in another, less desirable location. I don’t see how this is limiting principle.

                • Dilan Esper

                  I think localities should not handle zoning.

                  I know they do right now, but the results are terrible

          • (((Hogan)))

            Now you’re just protecting Massachusetts incumbents. Why not a national referendum?

    • Brett

      People bash referenda for good reason, but they can be used to by-pass a hostile state legislature that’s been heavily captured by corporate interests. A couple of red states raised their minimum wage, something I guarantee their legislatures had no interest at all in passing. If we had referenda in Texas, we could probably use them to loosen up the state’s unfriendly voter registration policies.

      Only about 10% of the population even lived in a city that had rent control but the whole state got to vote.

      Urban planning tends to turn out best when it’s heavily constrained by higher-level governments. At the local level you get a lot more dysfunctional policies.

      • lunaticllama

        I don’t know how true this is. Many times higher-level governments only care about the suburbs and not the actual cities, because suburbs tend to have greater (and politically more powerful) representation in state legislatures than cities.

      • Jeff R.

        People bash referenda for good reason, but they can be used to by-pass a hostile state legislature that’s been heavily captured by corporate interests.

        Sure. Isn’t that how they how the originated in the late 19th and early 20th centuries?

        My point regarding this is this referendum is similar to the pre-emption laws. The entire state got to vote on an issue that affected only one city. And as above, I’m talking process not the actual merits of rent control.

        • Dilan Esper

          It didn’t affect only one city. It also affected residents of the state who moght want to live there but can’t!

          • lunaticllama

            This argument can be made about nearly every local zoning decision.

            • Dilan Esper

              Again, local zoning is actually a terrible idea that contributes to de facto segregation.

      • Yankee

        Seattle Public Transit!! OTOH, Seattle Police Department!

  • Come to Louisiana to see the rethugs’ plan in action. You can gut a state and (maybe) still hold office by stoking the redneck’s fears of the black man.

  • kmannkoopa

    It definitely works in Liberal States too. Rochester, NY has lost three major cases to State preemption within the last couple of years, I’ll bring up one in particular

    City wanted to regulate what time bars close in a mixed-use neighborhood in order to keep it partially residential — 9:00 PM in this case. Nope! A judge ruled that the state liquor boards 2:00 AM time always win. So much for trying to have anything more than a transient 20-something population in that neighborhood.

    Fun Fact: the lawyer who won this case for the bars was also the lawyer who got the state to allow local municipalities to ban fracking.

    I’m sure people more familiar with NYC politics than me can come up with literally dozens of truly progressive laws and actions defeated by the state.

    Again, nobody believes in Federalism.

  • BiloSagdiyev

    Denton, NC – don’t think of it as a city. It’s a small town, population under 2,000, in a rural area. Are these the kind of folks who put McCrory into power? Yeah, I’m pretty sure on that.

    But they’re in the crosshairs of the coming ecocide, and they care about the land they live on. (And water they drink.)

    Ugh. As I have been known to say. Ugh.

  • kmannkoopa

    Oh, and I missed the picture with this the post.

    After allowing local gov’ts to ban fracking, New York State now doesn’t allow local municipalities to allow fracking.

    I’m not pro-fracking, but isn’t this just the same kind of preemption? Especially as the portion of NYS that has the most fracking potential (Southern Tier) is approaching Appalachian conditions of poverty.

    • mds

      I’m not pro-fracking, but isn’t this just the same kind of preemption?

      Yup. Because just like municipal minimum-wage and anti-discrimination ordinances, hydraulic fracking has no direct impact whatsoever outside of the municipalities in question. I mean, what’s next, the state pre-empting the right of municipal power plants to burn high-sulfur coal? Restrictions on open raw sewage pits? Where will it end?

      • kmannkoopa

        How about NYS preemption on Speed Limit laws? It took an act of the state legislature to allow NYC to lower the speed limit from 30 to 25 and more importantly – IT ONLY APPLIED TO NYC!

        In the rest of the state, you cannot have a speed limit lower than 30 MPH per state law.

        And to your point, municipal minimum wages and discrimination ordinances absolutely do have an effect on other towns who want don’t want these changed as it potentially can change business patterns.

  • Thom

    A minor point, but Austin did not reject Uber (or Lyft), it simply imposed some regulation. Uber and Lyft rejected the regulations, so departed. But other ride-hailing services are operating in Austin, and I expect that Uber and Lyft will return eventually.

    • osceola

      Actually, some Republican legislators have said they want to impose statewide corporate-friendly regulation that overturns the will of the Austin voters on this issue.

      Different Texas cities have different rules on driver background checks, but if the lege does anything, they’ll go lowest common denominator.

  • LeeEsq

    I’m torn about this issue. Its obvious that conservative state legislatures love hindering the ability of liberal cities to pass liberal policy measures. Tennessee passed a law to prevent either Nashville or Memphis from building a transit system a few years ago. Spite seems the sole motivation.

    At the same time, counties and cities are administrative creations of state governments. Its the state legislature that controls what the units of local government are and what they can do. This means that there is nothing wrong with states preempting local governments on an issue in theory even if the actual practice could get very political.

  • Russell Arben Fox
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