Opinion: Strong-arming From the States
States’ efforts to exercise power over cities are on the rise
After House Bill 2 passed last year, it was surprising to see how many people—even civic-minded folks who should have known better—objected to the new law because they thought the state government couldn’t legally overturn a city ordinance. They were in for a nasty shock. In North Carolina, and in most states, local governments are subdivisions of the state and, as hard as it may be to stomach, exist at their pleasure. It’s rarely been an issue in the modern-day United States because state governments have generally chosen not to bring the iron fist down on cities for, say, new setback requirements for single-family housing.
That era of détente is ending before our eyes. There’s money and passion to be generated by leveraging the power of state government as a cudgel against cities that have the gall to expand civil protections for LGBT citizens or decide not to enforce federal immigration laws. It’s no secret that North Carolina has served as a pilot project for right-wing governance over the last four years, and the shock-and-awe model legislators have employed since 2013 is now in use in states throughout the Republic—with a new administration that wouldn’t dream of checking them. David Graham, a Duke graduate and Durham resident, detailed the bigger picture in an insightful (and widely shared) piece in The Atlantic that went live Thursday:
But if liberal advocates are clinging to the hope that federalism will allow them to create progressive havens, they’re overlooking a big problem: Power may be decentralized in the American system, but it devolves to the state, not the city. Recent events in red states where cities are pockets of liberalism are instructive, and cautionary. Over the past few years, city governments and state legislatures have fought each other in a series of battles involving preemption, the principle that state law trumps local regulation, just as federal law supersedes state law. It hasn’t gone well for the city dwellers.
Close observers of these clashes expect them to proliferate in the years to come, with similar results. “We are about to see a shit storm of state and federal preemption orders, of a magnitude greater than anything in history,” says Mark Pertschuk of Grassroots Change, which tracks such laws through an initiative called Preemption Watch. By the group’s count, at least 36 states introduced laws preempting cities in 2016.
State legislatures have put their oar in on issues ranging from the expansive to the eccentric. Common examples involve blocking local minimum-wage and sick-leave ordinances, which are opposed by business groups, and bans on plastic grocery bags, which arouse retailers’ ire. Some states have prohibited cities from enacting firearm regulations, frustrating leaders who say cities have different gun problems than do rural areas. Alabama and Arizona both passed bills targeting “sanctuary cities”—those that do not cooperate with the enforcement of federal immigration laws. Even though courts threw out much of that legislation, other states have considered their own versions.
Arizona also made sure cities couldn’t ban the gifts in Happy Meals (cities elsewhere had talked about outlawing them, on the theory that they lure kids to McDonald’s), and when some of its cities cracked down on puppy mills, it barred local regulation of pet breeders, too. Cities in Oklahoma can’t regulate e-cigarettes. Mississippi decreed that towns can’t ban sugary drinks, and the beverage industry is expected to press other states to follow suit.
Most of these laws enforce conservative policy preferences. That’s partly because Republicans enjoy unprecedented control in state capitals—they hold 33 governorships and majorities in 32 state legislatures. The trend also reflects a broader shift: Americans are in the midst of what’s been called “the Big Sort,” as they flock together with people who share similar socioeconomic profiles and politics. In general, that means rural areas are becoming more conservative, and cities more liberal. Even the reddest states contain liberal cities: Half of the U.S. metro areas with the biggest recent population gains are in the South, and they are Democratic. Texas alone is home to four such cities; Clinton carried each of them. Increasingly, the most important political and cultural divisions are not between red and blue states but between red states and the blue cities within.
The divide isn’t really the news here; it’s been apparent for a while, and especially since November 8. What sends a shiver down the spine is the randomness of the states’ preemptions, as if the exercise of their authority, rather than any policy goal, was the entire point. What could the rationale be for regulating Happy Meals and e-cigarettes—or, for that matter, Charlotte’s protections of LGBT people from discrimination—if the display of dominance itself wasn’t important?
That’s certainly been the tenor of the first two weeks of the Trump Administration, an enterprise devoted more to power displays and less to policy achievements than any in the modern history of the country. It’s no accident, or coincidence, that legislatures in line with the administration are adopting its tactics. Last month, Charlotte Mayor Jennifer Roberts told a new coalition of mayors united against LGBT discrimination that during the HB2 debate, legislators offhandedly mentioned that they had the power to dissolve the City Council—not that they would, necessarily, but they could. If you’re catching a whiff of the mob—nice little city you got there; be a shame if something happened to it—you may be sensing the flavor of the years to come.