Around the United States, local government efforts to resist an escalating threat of federal authoritarianism now routinely make the news. Headlines tout county and municipal victories concerning sanctuary cities, protections against government surveillance, minimum wage hikes, worker protections, rent control, bans on fossil fuel infrastructure, and heightened discrimination protections.
Local governments, it appears, are leading a progressive response to the Trump agenda.
It’s a comforting narrative, but there’s a critical twist: local gains are being systematically repressed. Lawsuits and “state preemption,” when states rescind specific or broad powers from local governments, are routinely used to nullify new local laws.
This year, Iowa passed a law prohibiting local governments from impacting conditions of employment, including minimum wages, worker benefits and scheduling practices. Texas was added to the list of states that “preempt” sanctuary city policies. Portland, Oregon’s ban on fossil fuel infrastructure was struck down by the courts. Ohio communities were stopped from even votingon numerous local fracking bans. Seattle was taken to court for trying to tax the rich. Local school districts have been taken over by conservative state governments. And on August 28, the State of Missouri’s nullification of a hard-fought St. Louis minimum wage increase goes into effect.
“It’s a slap in the face to me,” Wanda Rogers, a McDonald’s employee and organizer with Show Me 15 in St. Louis told The Progressive. “They shouldn’t be able to come in and do it to us like that. We fought hard for this. This is something we deserve. And we need it bad.”
The Missouri preemption will lower St. Louis’s minimum wage from $10.00 to $7.70. And the city is not alone. The National League of Cities reports that as of February, local governments in twenty-four states are preempted from raising the minimum wage, and the number has grown since.
Responses to preemption have varied. In Birmingham, workers filed a federal civil rights lawsuit claiming Alabama’s 2016 minimum wage preemption disproportionately impacted black voters and residents.
A similar argument was used against Michigan's infamous “emergency manager” law—best known for its takeover of Detroit and Flint. At one point, 52 percent of the state’s black population lived in municipalities taken over by a state-appointed emergency manager or under some form of state oversight, compared to only 2 percent of white residents.
Both lawsuits claim that the disproportionate disenfranchisement of local black voters violates the Voting Rights Act. However, core arguments have been tossed out. In the Michigan case, the the court has been crystal clear that the U.S. Constitution’s guarantee to a “republican form of government” does not extend to municipalities. A central legal argument made against Michigan’s emergency manager law—that suspending local democracy is unconstitutional—was clearly struck down by the court. The only argument still alive is whether it matters that the law’s application has been racist.
This fight for democratic determination is intensifying in many states including Missouri, Ohio, Texas, Arkansas, Iowa, Florida, Michigan, to name a few. Now, as state and federal funds for municipalities dry up, public scrutiny is turning toward the deep-rooted legal doctrines that facilitate preemption and stop municipalities from filling the void.
The Community Environmental Legal Defense Fund (CELDF), a non-profit law firm that has worked with over 200 municipal governments, is partnering with state-based networks to advance state constitutional amendments in six states that would redefine state law as a “floor.” The amendments also propose elevating municipal laws above corporations’ legal privileges, which are routinely used to strike down local laws. According to Thomas Linzey of CELDF, “this would mean that community law making which expands civil and environmental rights for people and nature could not be overridden by corporations or state governments.” Similarly, Andrew Gillum, mayor of Tallahassee, Florida and leader of Defend Local Solutions—a broad anti-preemption coalition in Florida—said in an interview that he thought state law should also be defined as a “floor.” Gillum is running for Florida governor.
Defining state law as a floor seems measured and straightforward. But it actually represents a revolutionary departure from an established legal doctrine called “Dillon’s Rule,” which treats municipalities as “creatures of the state.”
It also punctures a false dichotomy that has so far dissuaded many progressives from full-heartedly engaging in fights for local democratic self-determination: the centralism vs libertarianism debate.
When people hear “local control,” they often hear “libertarianism.” While this fear is justified, defining state law as a “floor” blows up the theoretical centralism vs libertarianism dichotomy. By proposing a reform in the middle, the concept of a floor allows municipal governments to increase state protections, while maintaining the status quo that prohibits them from undercutting protections.
Another misconception comes from inaccurate understandings of “Home Rule,” a protection for municipalities that allows them to act without the express permission of their state. Many states passed Home Rule state constitutional amendments in the early and mid parts of the twentieth century. Some people think Home Rule is an adequate protection for municipalities—but even with it, governments can still unilaterally preempt Home Rule powers.
Although the progressive-era Home Rule movement may have been significant in its time, the reform has clearly been gamed by interests hoping to quash local governments. Those who promote Home Rule usually fail to mention that it has done nothing to protect cities in Michigan, Ohio, and other states experiencing severe state preemption. Ohio and Michigan are “Home Rule states,” yet both have some of the harshest anti-municipal state preemption laws (and emergency management laws) on the books. Just ask anyone who lives in Flint.
Conservatives are aware that Home Rule has become largely toothless. Which is why the pro-preemption, Koch brother-backed American Legislative Exchange Council, has launched an American City County Exchange, to defend this status quo. In a recent white paper of theirs, they correctly state that: “Although Home Rule is presented as an alternative to the Dillon Rule, the two are not mutually exclusive.…Regardless which rule is in place, local government is subject to the state.”
Progressives have now begun to make state preemption a top priority. Jim Hightower recently wrote that progressives should, “take hold of this issue [and] passionately challenge the preemption thugs.”
But it is important that they understand this issue as a systematic one, not solved simply by winning power at the state,federal or local level. Legal doctrines must change, and progressives will have to kill some of their darlings: New York, Washington and Oregon—often thought of as very progressive states—all have harsh preemption rules on the books.
These conversations sound cerebral and wonky, but they have material impacts on millions of American lives. When the St. Louis minimum wage ordinance is officially nullified on Monday, Rogers will bear the brunt, she said. “It’s going to be a real bad struggle for me all over again.”
Simon Davis-Cohen is editor of the Ear to the Ground newsletter, an exclusive “civic intelligence” service that mines local newspapers and state legislatures from across the country.