Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
From Cleveland to Birmingham, urban areas are finding ways to maintain local authority over everything from plastic-bag fees to minimum wage laws.
Back in May, Ohio passed a new state law targeting an old Cleveland ordinance. The state law, HB 180, preempted a 12-year-old municipal law that requires contractors to hire locally. The state’s legislation prohibited Cleveland or any other city in Ohio from passing local-hire laws.
Late in August, Cleveland struck back. A trial court placed a temporary injunction against the state law and ordered a full trial review for November. The court affirmed Cleveland’s right to self-government under the Ohio state constitution, specifically citing the Home Rule Amendment, which grants the “broadest possible powers of self-government in connection with all matters which are strictly local and do not impinge upon matters which are of a state-wide nature or interest.”
A wave of similar legal struggles have erupted nationwide, often pitting conservative state lawmakers against their urban counterparts, who tend to more more liberal. State legislatures have passed laws preempting the authority of cities over everything from plastic-bag fees to smoking bans to LGBT protections. In Alabama, for example, the state passed a law preempting local minimum-wage increases the day after Birmingham raised its minimum wage. As in Cleveland, workers in Birmingham brought a lawsuit against the state law, which they argue is unconstitutional.
“We’re excited about the ways in which we see cities fighting back on state interference,” says Ben Beach, legal director for the Partnership for Working Families. “We see it happening through both court challenges and through efforts to stop bills by state legislatures that would have the effect of taking away local authority over critical issues.”
This tide of state preemption laws, specifically laws affecting business, did not arise by coincidence. There are 19 states with preemption laws targeting local minimum-wage ordinances. A draft “Living Wage Mandate Preemption Act” prepared by the American Legislative Exchange Council, a conservative special interest group, has served as a template for several of them. ALEC has also coordinated state laws preempting municipal paid sick-leave bills.
Despite the nationwide push for preemption, the decision in Ohio as well as other recent court challenges suggest that conservative business interests may not have the final say on local law. Cities may have more authority invested in them than the recent wave of state preemption laws would suggest. In fact, the same train of thought that protects state authority from federal interference may protect local laws under fire in statehouses.
“The Ohio case is particularly noteworthy because it represents a court applying what is a fairly standard home-rule provision in the state constitution in a way that protects municipalities from state interference,” Beach says. “It’s often assumed that the basic home rule and Dillon’s Rule framework embedded in state constitutions necessarily means that the state has plenary power over all matters. Here’s a case where the court is reading, again, a fairly standard home-rule provision in the constitution in a way that’s very favorable to city authority.”
State preemption laws frequently feature similar if not identical language, thanks to ALEC. As a result, they face common challenges, legal and philosophical. One is the simple irony of conservative state legislatures imposing on the rights of residents to decide what’s best for themselves in their own communities. State government big-footing citizens’ self-determination is not exactly the hallmark of conservatism.
Another implication is more troubling, according to Christine Owens, executive director of the National Employment Law Project: Largely white state legislatures are stripping powers from largely minority urban centers.
“The refusal by the largely white state legislature to allow the largely African-American City of Birmingham to address its residents’ economic needs rests on a state constitution that intentionally limited local powers in order to suppress rights and opportunities of African-American residents,” Owens says in a brief on Birmingham’s legal challenge.
Several preemption bills are simply a matter of wild overreach. A lawmaker in Wisconsin proposed a concealed-carry bill that would allow any victim of gun violence to sue local businesses that prohibit weapons on their property. For more than 30 years, municipalities in Florida have been banned from creating local gun ordinances, but only within the last decade has that rule been enforced seriously; penalties for mayors and city councils that try to enforce gun-free zones locally include removal for office and fines reaching up to $100,000.
A bill proposed by a Republican Arizona state senator would strip cities of shared state funds if they are found to violate state law or the state’s constitution. The bill is an effort to make good on a threat by Republican governor Doug Ducey to withhold tax revenue from cities that enact local minimum-wage laws or other bills.
Local governments have not achieved victory in every fight against state preemption. Late in 2015, a judge in Pennsylvania’s Allegheny County struck down two local labor ordinances in Pittsburgh, including a paid sick-leave bill. The SEIU has appealed the decision, and Pennsylvania’s state supreme court may yet have the final word. Cleveland’s challenge against the state law in Ohio may follow the same path.
“I am hopeful that, if Cleveland is ultimately successful, that it will embolden other cities to embrace the power that they actually have,” Beach says. “And to change the overall perspective of both state and local officials about what’s possible.”