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From defiance to exploiting legal loopholes, municipalities are trying everything to get around state preemption laws and maintain local authority.
The steady increase in preemptive state bills that block local governments from moving forward on new ideas opposed by state legislatures has created a “minefield” for officials, said Carl Stenberg, a University of North Carolina at Chapel Hill public administration professor.
Stenberg studied state bills primarily dealing with the minimum wage and broadband and found 70 percent would limit local authority, 18 percent potentially imposed additional requirements on cities and only 11 percent would expand their powers.
He shared his findings Tuesday at the National Academy of Public Administration’s "Promoting Equality in an Age of Austerity" conference in New York City.
“We’re arguing for local empowerment to encourage creativity, entrepreneurship and the like,” Stenberg said.
Cities have several options in their “war” against “onerous” state regulations, Stenberg added, noting that a common one is outright defiance until the issue is settled in court. They can also use their legal powers to test the limits of state authority where it’s unclear, like Seattle did when it imposed a 2.5 percent tax on incomes over $250,000. Opponents had argued the city’s move violated Washington’s constitution.
Another avenue cities have is pursuing referendums, where voters authorize greater local autonomy.
And occasionally cities exploit loopholes in state law, as when Memphis worked around the Tennessee Historical Commission’s rejection of its plan to remove two Confederate monuments from public parks by selling the land to the nonprofit Memphis Greenspace. However, there were ramifications, as the state legislature responded with funding cuts to the city’s bicentennial celebration.
Republican “trifectas”—where the party controlled both houses of a state’s legislature and the governorship—were responsible for 77 percent of minimum wage preemption. That’s not to say that Democratic trifectas are any less preemptive, but Republicans currently control 26 states, Stenberg said.
Preemption has a long legal history. In 1868, federal Judge John Dillon issued two court decisions comprising “Dillon’s Rule,” later upheld by the U.S. Supreme Court, which holds “cities are creatures of the state.” That was at a time when many municipalities were bankrupt.
Preemption’s modern roots trace to the 1980s, when the National Rifle Association and tobacco industry pressured states to intervene against local governments restricting firearm sales and public smoking.
Since 2011, state bills have stopped cities from passing anti-discrimination ordinances, limiting firearm sales, approving paid sick days, banning plastic bags, instituting soda taxes, and ending fracking. New Mexico even outlawed “lunch shaming,” where school districts strapped for cash single out students who can’t pay for their lunches.
And then there’s the recent trend of superpremption, where states not only take away local authority but penalize cities that attempt to defy the law. Preemption aficionado Texas Gov. Greg Abbott signed legislation threatening to remove from office, fine and jail public officials that defied the state’s sanctuary cities ban.
Statewide policy reduces uncertainty from a business standpoint and can curb local corruption, Stenberg said. But a one-size-fits-all approach fails to account for local diversity and limits the engagement of citizens too far removed from the decision making, unlike “home rule.”
“Local governments are economic engines, and in order to create and retain jobs, to innovate and experiment in new areas ... we need to have greater latitude, greater flexibility, greater responsibility to do these things,” Stenberg said.
Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.