Municipal Preemption in the News

As I wrote recently, preemptive laws prohibit municipal governments from enacting particular policies. Preemption in the nineteenth century was extensive, as business interests used state legislatures tilted toward rural interests to thwart the efforts of municipalities to meet public needs through taxation and spending. Legislative limits are coming back in a big way, as Shaila Dewan reports in the New York Times today:

Darren Hodges, a Tea Party Republican and councilman in the windy West Texas city of Fort Stockton, is a fierce defender of his town’s decision to ban plastic bags. It was a local solution to a local problem and one, he says, city officials had a “God-given right” to make.

But the power of Fort Stockton and other cities to govern themselves is under attack in the state capital, Austin. The new Republican governor, Greg Abbott, has warned that several cities are undermining the business friendly “Texas model” with a patchwork of ill-conceived regulations. Conservative legislators, already angered by a ban on fracking that was enacted by popular vote in the town of Denton last fall, quickly followed up with a host of bills to curtail local power.

“The truth is, Texas is being California-ized, and you may not even be noticing it,” Mr. Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, just before he took office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”

So, local governments that serve 75% of the population of Texas are taking action to represent their residents’ best interests. I guess that really is a nightmare.

Pre-emption invokes a paradox for conservatives, like Mr. Abbott, who have long extolled the virtues of local control in some areas, like education, but now say uniform standards are necessary in others.

Oh.  Well, I’m sure that “necessity” is determined by public interest, and not by organized industrial groups….

The strategy was pioneered by tobacco companies 30 years ago to override local smoking bans. It was perfected by the National Rifle Association, which has succeeded in preventing local gun regulations in almost every state.

More recently, the restaurant industry is leading the fight to block municipalities from increasing the minimum wage or enacting paid sick leave ordinances in more than a dozen states, including Florida, Oklahoma and Louisiana. “Businesses are operating in an already challenging regulatory environment,” said Scott DeFife, the head of government affairs for the National Restaurant Association. “The state legislature is the best place to determine wage and hour law. This is not the kind of policy that should be determined jurisdiction by jurisdiction.”

This year, a combination of big money in state politics and a large number of first-time state legislators presents an opportunity for industries interested in getting favorable laws on the books, Mr. Pertschuk said. Increasingly, he said, disparate industries are banding together to back the same laws, either through the business-funded American Legislative Exchange Council, or by way of shared lobbyists. “There is going to be a feeding frenzy all year long in the state legislatures,” he said.

I’ve got some work that is nearing press that addresses the history of this aspect of state-municipal politics. I won’t spoil the plot, but this preemption is part of a long effort to suppress the democratic potential of American cities. This battle was expressed most influentially (perhaps notoriously) in the 1872 expression by Iowa Supreme Court Justice John Dillon of the notion that cities are constitutionally “creatures of the states.” It was purely coincidental that Dillon was a career railroad attorney, that railroads, the largest corporate enterprises of their day, were engaged in extensive battles against local governments over taxes and regulation, and that state legislatures were notoriously influenced by railroads. Indeed, the much-maligned headnote in Santa Clara County v. Southern Pacific Railroad that established the principle of corporate personhood was rooted in just such a dispute.

That’s not what’s happening today, right?

James Quintero, the director of the Center for Local Governance at the Texas Public Policy Foundation, said the pre-emption of city power was “new to the conservative movement here in Texas.” Still, he was ready to counter accusations of hypocrisy: “What we’re arguing is that liberty, not local control, is the overriding principle that state and local policy makers should be using,” he said.

OK. Liberty.

In Texas, many of the bills before the Legislature aim to prevent more cities from following Denton’s lead in banning hydraulic fracturing, or fracking. State Representative Phil King, a Republican representing a district near Denton, has sponsored two pre-emption bills. The first bill would require local referendums to be certified by the state as legal, and the other would require an assessment of the cost, in tax revenue, of any local attempt to regulate oil and gas.

Liberty it is.

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5 comments on “Municipal Preemption in the News

  1. […] you can see where municipalities have acted to create public broadband, and where they have been preempted from doing so by state legislation, frequently aided by the templates helpfully provided by the […]

  2. […] Greg Abbott has signed a bill preempting Texas municipalities from regulating natural gas drilling or “fracking” activities […]

  3. […] like Michigan (emergency management) and North Carolina (state pre-emption of local civil rights ordinances) allow state voters to override the will of locals–particularly when race, class, and […]

  4. […] I’ve studied and written about this issue in some depth, I would point out that this is one of the best popular accounts of the history of […]

  5. […] antidiscrimination ordinances, major areas of city-state conflict, although in many states local environmental protections have been preempted, which is increasingly important as the federal Environmental […]

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