Monday, February 13, 2017

Preemption: wedge in the urban-rural divide or mutually unjust imperfect legal doctrine?

Based in the supremacy clause of the Constitution, preemption is the principle that some matters are of such national concern that federal laws must preempt state laws. The doctrine is often limited to federal laws preempting things like state-mandated deportations (e.g. Arizona v. US) and allowing for interstate commerce (e.g. Hughes v. OK). Preemption is usually a pretty useful thing. It's a necessary check in the checks-and-balances of our governmental system.

However, recently, the doctrine of Preemption has become a mighty tool in high-stakes state vs. city conflicts. States can preempt any local law or regulation that is in conflict with state law, and this is a major ace-in-the-hole for lawmakers in state capitols. As our nation has become more politically polarized, state preemption of city ordinances has become more common. In his Atlantic article "Red State, Blue City," David A. Graham observes that in recent years, "[s]tate legislatures have put their oar in on issues ranging from the expansive to the eccentric." He goes on to argue that the reinvigorated preemption trump-card (heretofore rarely dusted off since the dormant-commerce-clause debates of the '70's and 80's) has arisen from a rural-urban friction that is distinct to our current historical landscape:
Rural areas are struggling, while densely packed areas with highly educated workforces and socially liberal lifestyles flourish. In turn, rural voters harbor growing resentment toward those in cities, from Austin to Atlanta, from Birmingham to Chicago.
In this context of increasing rural-urban division, people on both sides of the political aisle have warmed to positions typically associated with their adversaries.
However, my question is, while the use of preemption in localities has been most notable with regard to cities and urban centers lately, does this make state preemption of local ordinances a distinctly rural vs. urban contest? I don't know that it necessarily has to be.

According to Pertschuk and colleagues,
Preemption can halt state or local innovation, eliminate the flexibility to respond to the needs of diverse communities, undermine grassroots movements, prevent or delay changes in social norms, and concentrate the power of industry lobbyists in Washington and the state capitals.
It does seem that preemption can have myriad negative effects, and often these negative effects outweigh the positives of preemption's success as a tool for balancing local interests with state and federal ones. However, are these negative effects only on cities?

The Preemption Watch Newsletter from Grassroots Change, cites well over 25 preemptive bills that have been introduced in states across the nation in the last month. These pieces of legislation would preempt LGBTQ anti-discrimination measures, higher minimum wages, plastic bag ordinances, and more. In addition, there are preemption challenges and battles in several states regarding everything from gun control, to GMOs, to vaping. Cities, to their chagrin, have lost preemption battles over many issues, including transgender-friendly bathrooms, to fracking bans and guns in parks. The most talked-about preemption lately deals with sanctuary cities.

Are cities the only geographies to suffer (or, indeed, benefit, if you're into fewer restrictions on tobacco, gun ownership, soda, or alcohol) when preemptive measures are taken, though? The answer is no. Cities are, by far, not the only geographical spaces impacted by state and federal preemption.

For example, when the small town of DISH, TX (all capital letters), population 304, decided to take on natural gas companies in 2010, the Mayor knew that Texas preemption laws would likely bring their complaints through a slog of legal battles. The Texas Supreme Court agreed to hear the DISH appeal only a few weeks ago.

In another such battle, the towns of  Valley Park, MO and Riverside, NJ (both with populations under 8,000), joined the cities of Hazleton, PA, Farmers Branch, TX, Escondido, CA, and Fremont, NE to put ordinances into place that blocked illegal immigrants from living within their borders. According to the Washington Post, they "did so largely out of frustration, fed up with swift demographic changes and what they saw as the rising costs of caring for undocumented residents." However, all the ordinances were overruled by courts, which found them unconstitutional, including legal battles that took the cases all the way to federal courts. and cost the towns and cities exorbitant amounts in legal fees.

We've recently discussed signs in the Central Valley and on route 99 south of Sacramento, and indeed, even outdoor advertising in unincorporated areas of California has been the subject of preemption questions.

It seems to me that preemption is not necessarily a city vs. rurality issue as Atlantic's Graham, and others have argued. What's more, it is dangerous to add to the polarization of geography in this nation, particularly over an issue that might actually unify ruralities and cities.

Instead, I propose that, despite the political polarization that drives conflict, we think of preemption as a last-resort for any state to use against any locality, regardless of political leaning. The fact is, preemption battles won in state capitols tend to remove agency from rural towns and counties in addition to cities. Preemption brings the hammer down when those local areas have chosen to pass laws that locals feel reflect their values.

Though he is the Mayor of the city of Tallahassee, Andrew Gillum's campaign called "Defend Local Solutions" isn't only for cities. The campaign is instead meant to bolster the "say" of all local folks - people who live in towns, cities, and counties. Gillum posits that "shadowy special interests and unaccountable lobbyists" are lurking behind legislators' preemption efforts in state capitols, and that these political opportunists and operatives prevent local people from controlling where their own tax dollars go. I can't say I disagree with this position. At first, it seems like Defend Local Solutions is looking out for both the geographical "little guy" as well as the "big guy." Despite this ostensibly geographic neutrality, Gillum's campaign (by its left-leaning nature) is a campaign more in lock-step with "city values." However, this isn't how Defend Local sees it, and it isn't how they're trying to sell the movement, either. The promotional language on the Defend Local website keeps cities out of the limelight. As Henry Grabar from Slate notes:
 Instead, [Defend Local] invokes taxpayers, part-time politicians, and Little League coaches. It focuses not on the successes of the old Volvo-sushi-latte nexus, like Boston or Seattle, but on the injustice that has left citizens in Tallahassee and Chattanooga unable to make basic civic decisions.
Whether Defend Local and similar movements in opposition to preemption succeed in bridging the city-rural gap, its arguably true that they are trying to find common ground and common issues. This is a page we can all take from the anti-preemption debate. Perhaps there are additional challenges that localities have in common, regardless of their differing demographics, population densities, and infrastructures. Perhaps we should be looking for issues like this to band differing spaces together on, as opposed to the polarization that's driving us apart.

1 comment:

Anne Badasci said...

This is a really interesting take on this issue! For me it raised thoughts of the "state as a testing ground" dynamic, in the state-national context. That doesn't typically get extended to the city-state context in everyday discussion, but your post makes me wonder if maybe we should think about it that way. Shouldn't we let cities test things on a smaller, more on-the-ground scope first before we determine if "what's good for the goose is good for the gander?" I.e., when San Francisco experienced great success with its plastic bag ban, we started adopting that statewide, because it was just a good idea. It's interesting to think about that, and the flip side--states preempting cities from making those decisions, even if its the more efficient and cost-effective way to make those types of changes, just for what may be politicized reasons.