Laboratories of Democracy: How the Right is Limiting Progressive Policies in Cities

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.

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  • Denis Drew
    commented 2017-10-11 17:02:36 -0400

    The restocking of American labor union density in 39 words:
    If a state or local legislature passes a law that makes exercising freedom of association (e.g., organizing a labor union) possible where it would otherwise not be possible, then, Congressional preemption of labor law falls to the First Amendment.

    Federal interference (preemption) with state legislation can pop up in the least likely places (and least practical).


    Florida wanted 140 mph resistant cranes — Congress thought 93 mph okay, years ago — judiciary thought no lives endangered (off street; none lost to previous storms); probable property damage to cranes and structures not enough to let Florida do its own thinking. No competing value somewhere else in the Constitution could save Florida from judges judging federal preemption.

    Not so in every area.

    A doctor on KevinMD blog griped that anti-trust laws bar doctors from combining to bargain fees with hospitals (unless employed there). I opined (no expert on the specifics) that if doctors combined to bargain with a giant like Blue Cross, then, overall market power would be sufficiently balanced — for the First Amendment to assert itself and protect doctors’ combination — disallowing not a matter of legislative choice. (I got the general idea right anyway.)

    For decades now, judicial interpretation has walled out state labor legislation under federal preemption until it precludes anything the NLRA even so much as arguably protects or prohibits (Garmon); all arguments resolved solely by the NLRB — also almost anything that fits under the definition of the free play of economic forces affecting collective bargaining (Machinists), IOW almost anything not fitting under the definition of protected or prohibited.

    Ironically, as decades of judicially discovered barriers to state intervention piled up, the number of union workers left under federal rules slid endlessly down.

    Decades during which the initial intent of Congress to “encourage the practice and procedure of collective bargaining” — was been lost to growing federal ineffectiveness and state law freeze out.

    6% labor union density in private business (the 6% able to hang on by their own natural advantages; no help from Congress) equates to 20/10 blood pressure — no difficulty diagnostically. And it starves every other healthy democratic process.

    For an all day read on uninvited judicial construction activity click below (97 page PDF, very readable, half is notes and if you only want to check out Garmon and Machinists you can do pp. 70-90).

    Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy by Henry H. Drummonds

    Late dean of the Washington press corps, David Broder, told a novice reporter that when he came to D.C. fifty years earlier, all the lobbyists were labor. I tell doctors that no matter what health system we originate or borrow it won’t halt the financialization and crapification of US medicine — unless we build a countervailing force, unless we restore healthy union density (for the whole country, not just doctors).

    How to get (back) there in 30 words:
    Constitutionally guaranteed freedom of association precludes Congress from disallowing state legislative protection of labor organizing for collective bargaining which legislation is a necessary condition for the exercise of that freedom.


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