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 revenue from 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.”
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.
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.’ ”
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