“If Americans don’t start paying closer attention to what’s happening in statehouses across the country, the republic may never recover.”
- New York Times, March 19, 2019
The Increased Use and Abuse of Preemption
Preemption occurs when a higher level of government (such as a state legislature) restricts or withdraws the authority of a lower level of government (such as a city council) to act on a particular issue. Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity.
In the past, states have established minimum standards, “floors” for local government to build on – to tailor locally or make stronger. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law.
Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”
This is not what we are seeing now. What we are seeing now is preemption that prohibits local governments from doing more than what was proscribed by the state and, in many cases, from regulating at all. “New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.”
Where States Are Interfering
The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up of corporate lobbyists and a quarter of all state lawmakers that writes and distributes “cut and paste” model bills. Their strategy has succeeded at an alarming rate.
From 2011 to 2019, the quantity and reach of new preemption laws have skyrocketed. As of August 1, 2019:
25 states preempt local minimum wage laws – North Dakota was added, but Colorado was removed from the list in 2019
15 states ban local plastic bag bans – adding in Tennessee (2019) and Pennsylvania (2019)
· At least 11 states preempt local sanctuary policies – adding in Arkansas (2019)
At least ten states preempt local regulation of e-cigarettes – adding in Arkansas (2019), Texas (2019), and Utah (2019)
Five states have preempted local fair hiring, “Ban the Box” laws – Indiana, Michigan, Mississippi, New Jersey, Tennessee
Four states now ban soda taxes – Arizona, California, Michigan, Washington
The State is Now Interfering in More Policy Areas:
Minimum wage, paid sick time, wage theft, local hire, pensions, fair scheduling
Anti-discrimination, sanctuary cities, immigration
PUBLIC HEALTH AND SAFETY LAWS
Gun safety, e-cigarettes sales, food labeling, sugar-sweetened beverages
Broadband, 5G, self-driving vehicles
Factory farming, plastic bags, Styrofoam, energy benchmarking
Fracking, inclusionary zoning, rent control
Tax and expenditure limitations
States Are Interfering in Unprecedented Ways
PUNISHMENT OF LOCALLY ELECTED OFFICIALS AND LOCALITIES
Cutting state funds and to threaten local officials with fines, removal from office or jail.
The most punitive measures have focused on local efforts to regulate firearms or deal with undocumented immigrants.
One state – Arizona – has taken a punitive approach to all local laws subject to state preemption. Arizona’s extensive preemption law, Arizona Statutes § 41-194.01 (enacted in March 2016 through SB 1487), imposes steep monetary consequences for local governments that pass ordinances found to be in violation of state law and has effectively chilled local initiative in the state.
OVERTURNED BALLOT ELECTIONS
Tempe, Campaign Finance Disclosure Law, Passed 91% – 8% (2018)
Austin, Defeated UBER’s efforts to escape regulation: 56% – 44% (2017)
Nashville, Local Hire Law: Passed 57%-43% (2016)
Denton, Texas Fracking Ban: Passed 59%-41% (2015)
Fayetteville, Arkansas: Passed 53%-47% (2015)
Milwaukee, Paid Sick Days: Passed 69% – 31% (2011)
ELIMINATION, IN ONE “DEATH STAR” BILL, OF LOCAL CONTROL OVER BROAD SWATHS OF WAGE AND WORKPLACE STANDARDS
In one preemption law (House Bill 4052), Michigan prohibited any local ordinance that controls minimum wage, benefits, sick leave, union organizing and strikes, wage disputes, apprenticeship programs, and “ban the box” policies (blocking employers from asking about felony convictions). Wisconsin has taken a similar approach.
In 2017, Iowa preempted in one law (House File 295) all local ordinances on employment leave, hiring practices, employment benefits, scheduling practices, and other terms or conditions of employment. Beyond just wage and workplace standards, the law also included sweeping preemption on plastic bags and other containers made of a cloth, paper, plastic, and a range of other materials.
In 2019, broad bills eliminating local regulation of business were introduced but failed in several states, including:
Florida (HB 3) which would have preempted local governments from adopting or imposing any regulation of businesses or business entities and repeal all current regulations by 2020.
Texas (SB15) which was drafted broadly enough to block local governments from adopting or enforcing essentially any regulation on private sector businesses related to employment terms or standards
Texas (HB 3899) which would have imposed sweeping and severe limitations on the ability of municipalities to pass laws regulating businesses
West Virginia (WVA 2708) which would have explicitly blocked cities in West Virginia from enacting nondiscrimination regulations that are more protective than the state’s and would have preempted a host of other labor standards issues
Pennsylvania – HB 331 is still alive and would prohibit local governments from passing labor policies and would broadly preempt “employer policies or practices,”
PERPETUATION OF ECONOMIC AND RACIAL INEQUITY
A housing preemption map: State Preemption of Local Equitable Housing Policies
LSSC, with support from Grounded Solutions Network, Partnership for Working Families, Poverty & Race Research Action Council, National Fair Housing Alliance, and the Urban Law Center, created a new, searchable map that showed that a majority of state legislatures are using preemption laws to block local equitable housing policies, worsening the lack of affordable housing throughout the country. The map showed the 33 states that have passed short-term rental, rent control, income discrimination, or inclusionary zoning preemption.
A Partnership for Working Families report: For All of Us, By All of Us: Challenging State Interference to Advance Gender and Racial Justice. LSSC funded research done by the Partnership for Working Families looking at the effects of preemption on women, and particularly women of color in four cities: Denver, Colorado; New Orleans, Louisiana; Pittsburgh, Pennsylvania; and Nashville, Tennessee.
Research shows preemption laws are also being used to prevent local governments from passing laws that protect LGBTQ people from discrimination:
A Better Balance and the Movement Advancement Project (MAP): The Power of State Preemption: Preventing Progress and Threatening Equality. LSSC and A Better Balance co-authored and published a report with MAP exposing the coordinated effort to limit municipalities from passing local equality measures, the special interests motivating these efforts, and the negative impact specifically on LGBTQ people. The report, shared widely, concludes that when preemption is used in this way to undermine people’s economic security, health, and safety, it jeopardizes local democracy and equality for all.
Courts are also looking at the state use of preemption to perpetuate racial inequities:
In the case of Lewis v. Governor of Alabama, the Eleventh Circuit decided to allow a challenge to the State of Alabama’s preemption of Birmingham’s minimum wage ordinance noting, “the disproportionate effect of the Minimum Wage Act on Birmingham’s poorest black residents; the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making.” The court concluded that plaintiffs had made a plausible claim that the state’s preemption law violated the 14th Amendment's equal protection rights. That ruling, however, was vacated, and the full U.S. Court of Appeals for the Eleventh Circuit heard arguments in late June 2019 to determine whether a challenge by advocates can proceed.
IMPLEMENTATION OF SPECIAL INTEREST ANTI-REGULATION AGENDAS
The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy – driven by corporate interests and very often orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization of state lawmakers and lobbyists. Corporate special interests have used their influence effectively in state capitals to advance the anti-regulatory, pro-industry model bills developed and disseminated by ALEC. Here are some key examples of model ALEC bills that are used as the basis for many of the state preemption bills now being enacted with increased frequency.
Minimum Wage. Since 1991, ALEC has promoted a so-called “model” bill to preempt local increases to the minimum wage.
Municipal Broadband. Backed by AT&T, Verizon, and Comcast, ALEC has pushed industry-backed measures to preempt cities and counties from providing citizens with basic local broadband – and now 5G.
Sugar Taxes. Backed by the American Beverage Association, ALEC has sought to preempt cities from taxing sodas or requiring that restaurants provide nutrition information about their menus.
Sanctuary Cities. ALEC adopted a bill that effectively barred sanctuary cities by creating new crimes of “trespass” for people without federal immigration papers and allowing private suits against police if they do not “fully” enforce immigration laws.
Rent Control. Another ALEC bill would bar cities from adopting rent control measures.
Plastic Bags. This ban on local container bans concludes, “The free market is the best arbiter of the container.”
5G Wireless. ALEC readopted a 2006 model bill in 2015, just a year before some states began passing small-cell laws.
Pesticides. This ALEC bill banning local regulation of pesticide sale or use was written in 1995 and has been readopted twice since then.