City vs. State: The Story So Far

As cities flex their muscles in opposition to President Trump’s policies on everything from climate change to immigration and economic development, they face a serious obstacle: sweeping state efforts to preempt their authority.These efforts date back well before Trump’s populist rise to power and span a whole host of critical issues—from states’ attempts to block local minimum wage increases to non-discrimination protections for LGBTQ people to blanket bans on ordinances restricting fracking and guns.Readers of CityLab will recognize plenty of examples of this anti-urban phenomenon. A new article in the Journal of Federalism by Lori Riverstone-Newell of Illinois State University offers a thorough overview of the rise of state preemption laws, drawing on recent examples of ongoing fights to assert city sovereignty. Here’s a summary of those key fights by policy area.

Minimum Wage

The “Fight For 15” movement is really about cities. By November 2016, Riverstone-Newell writes that nearly forty cities and counties had agreed to local increases in the minimum wage ranging from $8.50 to $15.75 an hour in states such as Arizona, California, Florida, Illinois, New Mexico, Maryland, Washington, and Maine (plus Washington, D.C.). Right now, 29 states set a higher minimum wage than the federal government and Arizona, Colorado, Maine, and Washington passed statewide raises in 2016.

But states such as Ohio, Alabama, and Missouri have taken actions to preempt local minimum wage increases. This tactic is a relatively recent phenomenon: 12 out of the 23 states with minimum wage preemption statutes adopted the laws after 2013.

In Ohio, Governor John Kasich signed a preemption bill in December 2016, preventing local minimum wage hikes from exceeding the state rate of $8.10 per hour in response to Cleveland’s special election on a wage hike that would have happened this May. In Alabama, a 2016 preemption law undid Birmingham’s effort to raise the minimum wage to $10.10 per hour. Just today, Atlanta Mayor Kasim Reed, the Southern Poverty Law Center, and the NAACP Legal Defense Fund have filed an amici brief for urging the Eleventh Circuit to hear the appeal that Alabama’s blocking of the law violates the Voting Rights Act and the Equal Protection Clause.In Missouri, then Democratic governor Jay Nixon vetoed a minimum wage preemption law but was then overruled by a Republican legislature for HB 722 in 2015. In that instance, the city of St. Louis raced to pass a law before the preemption law would come into effect and beat the clock in February 2017. The Missouri Supreme Court upheld the ordinance raising minimum wage to $11 per hour by 2018, but lawmakers just passed a bill to reverse the wage increase last month to be signed by Republican Governor Eric Greitens.

LGBTQ Non-discrimination Protections

Over 225 localities have some sort of local non-discrimination protections for the rights of LGBTQ people. Preemption of these laws date back to 1992, when Colorado approved a constitutional amendment after various municipalities passed laws banning discrimination based on sexual orientation. But that law was challenged and overturned by the Supreme Court in Romer v. Evans in 1996. More recently, laws preempting local non-discrimination ordinances have passed in Tennessee in 2011 and Arkansas in 2015.

The most famous example is North Carolina’s HB2 that passed in March 2016. That law preempted Charlotte’s so-called “bathroom bill,” which would have provided non-discrimination protection for transgender people using public bathrooms, as well as other protections. By the end of the year, the city agreed to repeal the law and by March 2017, the state passed a law, presented as “compromise bill,” that still prevents cities from passing LGBTQ protections until 2020. Fighting these laws at the local level so far has not had much recent success in court either—for example, Arkansas’s Supreme Court struck down Fayetteville’s non-discrimination ordinance in February 2017, even after a circuit judge ruled in favor of the city.

Sanctuary Cities

Across the United States, over 300 cities, counties, and townships have some form of sanctuary city policy. Meanwhile, according to the National Conference of State Legislatures, at least 36 states and the District of Columbia are considering legislation regarding sanctuary jurisdictions or noncompliance with immigration detainers—with 33 prohibiting and 15 states and D.C. supporting, with 12 states total featuring legislation on both sides of the issue.

The fight over sanctuary cities has pitted federal, state, and city officials against each other and is about to come to a head this year as federal funding is in jeopardy. The most prominent example of preemption might be Texas, where Governor Greg Abbott has already blocked $1.8 million in grant funding to Travis County over its sanctuary policy and signed a “super preemption” law last month aimed at punishing local officials who do not cooperate with immigration authorities. It is set to go into effect in September. A Florida bill would impose a $5,000 per day fine on sanctuary cities (and Miami-Dade County has already voted to end its status as a sanctuary city) and North Carolina has a bill pending to strip cities of a variety of revenue sources if they operate as a sanctuary city. Other states that enacted restrictions this year include Mississippi, Georgia, and Indiana.

Gun Control

A number of states have passed bans on local gun control ordinances, most notably Florida, Pennsylvania, Tennessee, Wyoming, North Carolina, and Nevada. Cities have attempted to fight these measures. One well-known case: Tallahassee Mayor Andrew Gillum’s fight in court over Florida’s law restricting local gun ordinances, where no particular statue defines a policy but any local ordinance restricting guns is outlawed.

Fracking

As of April 2017, nearly 550 localities had passed restrictions on the practice of hydraulic fracking for natural gas production in 26 states. Of those states, only four have their own statewide bans. Many of the laws are symbolic bans, as there are no shale plays for fracking. But Inside Climate News identifies thirteen states where fracking bans run against substantial industry interests.

Though Pittsburgh was the first municipality to pass a fracking ban in 2010, the major test case for preemption is Denton, Texas. The city passed a ballot initiative in 2014 and sparked similar legislation across the country. Denton provides a particular distinct example of a city setting an environmental policy in a state so driven by oil. But in 2015, the state passed a law to preempt local regulation of oil and gas, limiting regulations to above-ground issues like traffic, noise, lights or “reasonable setback requirements,” undoing the Denton ban.

Oklahoma and North Carolina passed similar fracking-related preemption laws in 2015 and bills have also been introduced in Florida and Indiana. Meanwhile, Colorado and Louisiana have had preemption laws affirmed by the courts to stop local regulations on fracking, but courts have also struck down such fracking preemption laws in Pennsylvania and New York. However, Florida is also considering a statewide ban on fracking after 76 local bans have been enacted in the state.

“Blanket” or “Super” Preemption

Other states have moved to a tactic what is called “blanket” or “super” preemption, where the legislature authorizes the executive to determine whether local law violates a state law without particular definition. Arizona passed a law in 2016 that is often referred to as the “mother of all local preemption bills,” which withholds funds from localities that pass regulations or ordinances that contradict state law and leaves making that distinction to the state attorney general. Similarly broad preemption bills have been introduced in Arizona, Iowa, Texas, and Michigan. Other blanket preemption bills have been introduced but not enacted, though Riverstone-Newell notes they are often pared down as “compromise” bills to stop specific laws, as with North Carolina’s HB2.The consequences of such blanket preemption are chilling. At what point will states undermine the broad capacities of cities and their residents to govern themselves?

Cities are up against more than Trump. The GOP controls 33 governorships and both chambers in 32 state legislatures. State preemption laws seek to strip cities of their abilities not just to oppose the White House agenda but to forge policies that reflect the desires, beliefs and concerns of their own residents. State legislatures in the U.S. have long had an anti-urban bias—in 2013, a study I wrote about in CityLab found that bills sponsored by legislators from small or medium-sized cities were overall twice as likely to pass as those that originated in big cities like Chicago or New York.

Another hurdle for cities is the constitutional challenge that they are legally considered “creatures of the state.” Republicans narrowly advocate for states’ rights in the face of federal power, arguing that cities don’t have the right to challenge the state. But this misremembers the origin of rights—they belong to people. Here’s how an Ohio Republican state senator summed up his opposition to Cleveland’s minimum wage hike: “[W]hen we talk about local control, we mean state control.”

The time has come to reconsider the very nature of federalism. As I have written here before, we really are two different countries, red and blue, with division within states. It is time to adopt a federalism that recognizes the rights of cities to determine their own policies for the sake of their citizens.

As Riverstone-Newell’s survey of state preemption shows, this conflict isn’t a new phenomenon: It’s been decades in the making. But Trump may have inadvertently galvanized the local control movement, most recently with his actions on climate change. Witness the recent broad bipartisan coalition of nearly 250 mayors who have pledged to work towards the goals of the Paris climate accord. We may very well be seeing the birth of one possible model for such a power shift.