Federalism- the division of decision-making power between different levels of government- is one of the foundational features of American government.
The United States Constitution provides state governments with significant political power. States are considered to be “closer” to the people than the federal government and are therefore better suited to customize policies that meet local needs. But Supreme Court Justice Louis Brandeis made another argument in his dissent to New State Ice Co. v. Liebmann that: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
US Supreme Court Justice Louis Brandeis
Even though the issue of “state’s rights” has been commandeered by conservatives in recent decades, these arguments hold a degree of truth. But if this is the case, why is it that the same doesn’t hold for city governments? One might think that those most vigorously in favor of state’s rights might also support a wide degree of latitude for cities, which are even closer to local populations and can engage in endless policy experimentation on a small scale to find out what works and what doesn’t.
Cities, however, appear to be more restrained than states. As the National League of Cities detailed in a report this Summer, state “preemption” laws- state laws nullifying local laws and requiring all cities in a state to abide by state policy- have been growing in popularity in recent years.
These laws are often used by Republicans, who control most state governments, to block cities from enacting progressive policies supported by locals. 24 states prevent cities from raising their minimum wage above the state level, 17 prevent cities from requiring paid leave for employees, and 17 prevent cities from creating public broadband services. A whole 42 states have some form of “Tax and Expenditure Limitation,” setting limits on taxation and spending for city governments. 43 prevent various forms of gun control above state levels of regulation. In a case that made national news, North Carolina passed a preemption law preventing cities from allowing transgender people to safely use the bathroom that meets their gender or providing anti-discrimination protections for LGBTQ people, only to pass a so-called “repeal” of it in response to public pressure a year later. Arkansas and Tennessee have similar laws, and many other states have considered them.
First and foremost, blocking the implementation of progressive laws by democratically-elected local governments is a betrayal of citizens’ desires by state governments and an attack on the vulnerable people who stand to benefit most from policies like minimum wage hikes and LGBTQ anti-discrimination protections. But there’s another problem as well. As we can see with Seattle’s $15 minimum wage ordinance becoming the center of debate about the merits of the policy itself, local policy experimentation can provide us with new information about public policy at a federal level. Preemption laws block this experimentation.
By preventing cities from putting these policies into place, we lose out on experience and opportunities for research into if and how they could be implemented elsewhere. What are the environmental and economic effects of plastic bag bans in the US? We can’t be sure, as five states have prevented local cities from testing the policy. Is requiring government contractors to hire low-income workers for at least 10% of their workforce an effective way to expand job opportunities for the poor? We don’t know: Tennessee blocked Nashville from trying.
This is especially damaging in areas of policy that have only emerged in recent years, where much more study is needed. For example, the emergence of the “sharing economy,” (including ride sharing companies like Uber and house sharing companies like Airbnb) has brought with it both promising new forms of economic activity and a host of issues involving labor rights, insurance, safety, property zoning, and more. Indeed, because of the person-to-person nature of the sharing economy, different cities might experience it in very different ways. This provides a strong case for local governments to customize and experiment with their regulatory policies: if Uber drivers in New York City earn more than 2.5 times per trip as much as drivers in Chicago do, there may be good reason to regulate them differently. But 37 states have now preempted local governments from regulating ride-sharing, and three have already preempted them from regulating home sharing. If the “sharing economy” is as revolutionary as its proponents claim, then those interested in good public policy are going to want to collect as much information as possible about how to handle it; preemption laws stand in the way of that.
In an era where progressive reform on a local level appears especially promising, state preemption laws are an obstacle towards a brighter future. States are standing in the way both of good policy and of discovering new forms of good policy. It’s time for them to step out of the way and let cities take a shot at leading.