Molly Cohen is an associate counsel with the New York City Mayor’s Office of Criminal Justice. She previously worked for New York City Council Member Rory Lancman and New York University’s Office of General Counsel.
How can blue cities fight back against red states? Here are four lines of defense.
On August 28, the minimum wage in St. Louis will decrease from $10 to $7.70, in defiance of the city’s wishes. Why? The Missouri state legislature banned local minimum wage increases.
Around the country, as liberal cities increasingly diverge from their red states, cities have passed progressive legislation on hot-button issues like fracking, gun control, LGBTQ protections, and environmental policy. With Republicans controlling 32 legislatures and 33 governorships, a lot of these efforts have stalled on the state and federal level: States have vigorously resisted progressive cities’ chutzpah, moving again and again to block local progressive legislation by preemption. Cities are usually at the losing end of these battles, as in St. Louis and the towns and cities of the 24 other states that have passed laws preempting localities from raising the minimum wage. Generally speaking, municipalities are creatures of the state and possess only the authority delegated to them by state statutes or constitutions. The hierarchy is clear in almost every case: When state and local law conflicts, state law wins.
I know this from personal experience, having volunteered on local campaigns, served as a legislative counsel to a New York City Council Member, and worked for a mayoral administration. (Standard caveat: I write this article not as a representative of New York City, but rather in my personal, local-government-loving capacity). These roles have taught me a lot about the tension that can arise between state and local governments, even in a blue state like New York.
So, what’s a city to do? Municipalities can do more than just talk: They can act. Below are four practical ways of fighting back for municipalities facing preemption.
Lobby the State (and Find Allies)
This tactic is the most obvious, but also the most effective. If the state legislature has passed legislation preempting a city from passing the legislation it wants, the city can lobby friendly state legislators to repeal or amend the law. Either ask the state legislature to remove the preemption bar, providing room for local experimentation and innovation, or request the state legislature to pass its preferred policy position statewide.
Lobbying the state legislature is no easy feat, particularly in states with a strong red/blue divide or anti-urban animus. To increase their power and bolster their claim, cities can and should form diverse coalitions with other cities and advocacy groups. For example, the mayors of Ohio’s 30 largest cities have banded together to form the Ohio Mayors Alliance, a bipartisan group that lobbies on issues such as infrastructure investment and the opioid epidemic.
Just Do It Anyway
If a city cannot legislate, it can often create some limited solution—or make a public statement—by putting its money where its mouth is: setting a city policy, creating a new program, or using the power of the purse. For example, a city preempted by a minimum wage ban can take action by raising the minimum wage for city employees and city contractors. A number of cities have tried this tactic recently: The Atlanta City Council passed a budget increasing the minimum wage for city employees to $15 over two years, while Pittsburgh raised its minimum wage for city employees to $12.50.
Cities can accomplish other broad policy aims through finances and contracting—for example, divesting pension funds from fossil fuels like Somerville, Massachusetts, or requiring municipal purchases to be certified as sweatshop-free, like Chicago, Los Angeles and Austin. However, some states may have public contracting laws that prevent cities from using procurement to enact policy change.
Cities can also create programs or executive policies that defy their states. If a city wishes to decriminalize possession of small amounts of marijuana but is preempted by state law, the executive branch can order the police department to change enforcement and arrest policies regarding marijuana, or it can work with the local district attorney’s office to stop prosecutions. In February, the Harris County D.A. and Houston city officials announced a de facto decriminalization of small amounts of marijuana, eliminating most arrests and prosecutions and replacing them instead with an education program.
Obviously, legislative solutions are generally preferable to administrative actions, which are easier to repeal in changing political winds; they also require more cooperation to create and implement and lack the imprimatur of legislative legitimacy. In some instances, administrative actions themselves can be challenged based on state or federal preemption. For example, a 2007 Seattle executive order recognizing same-sex marriages of city employees was challenged based on state law preemption, but was ultimately upheld. Nevertheless, just as Executive Orders allowed President Obama to eke out wins on immigration reform and climate change despite Congressional inaction, local executive action can allow cities to achieve their goals despite the state preventing the city from legislating in a particular area.
Make a Very Narrow Law
Preemption isn’t always cut-and-dried. Sometimes a state legislature may act specifically to preempt a recently passed local law, but often the situation is more ambiguous. The mere fact there is state law about an issue does not necessarily mean a local law is preempted and presumptively invalid. Preemption doctrines, and their limitations, can vary importantly state by state. In some instances, municipalities may draft legislation narrowly to avoid preemption challenges, so that the local law fits in alongside, rather than runs directly up against, state law or policy.
For example, New York and Pennsylvania courts have upheld local fracking bans as a valid use of zoning power, despite comprehensive state law that governs oil and gas extraction. These localities are able to govern where fracking occurs, even if they cannot govern how it occurs. Similarly, California jurisdictions have narrowly regulated aspects of alcohol marketing, though state law governs sales: Los Angeles mandated retailers posting a sign about health dangers of alcohol, and Berkeley created a bottle deposit program for alcoholic beverage containers.
Take ‘Em To Court
Like so many other cities before, a municipality can always litigate—and sometimes they can prevail. There are a number of legal theories they might rely on in this fight.
Municipalities can first litigate the actual question of preemption, arguing there is no conflict between state and local law—or even that the relevant state legislature intended to leave localities some room to regulate. These cases rely heavily on the specifics of the state/local relationship and the activity being regulated under local law. For example: Is it related to police powers? Is it an area like land use that’s typically regulated by a local government? Another tactic: Cities can also pass a law and wait until they get sued by the state government, then hope for a favorable settlement rather than an outright negative judgment.
Rather than attempt to reconcile the competing legislation, municipalities can also rely on federal constitutional principles to argue that the preempting state law is unconstitutional and invalid. There is solid precedent to rely on. In Romer v. Evans, the United States Supreme Court struck down a state constitutional amendment barring localities from protecting the LGBTQ community, stating that it violated the Equal Protection Clause of the U.S. Constitution, because it was based on animosity towards a class of individuals and unrelated to a legitimate government purpose. Similar logic could apply to preemption legislation barring transgender bathroom rights and extending employment discrimination protections.
However, cities face serious roadblocks trying to sue their states. Because municipalities are creatures of the state, some courts hold that municipalities hold no rights, including constitutional ones, beyond those granted by the state. Based on the Supreme Court case Hunter v. Pittsburgh, federal courts often hold that municipalities lack the standing or capacity to sue to vindicate their rights. Some courts go so far as to state that municipalities have no federal constitutional rights vis-à-vis their state.
Recent Supreme Court cases, including Romer, offer some hope for cities attempting to sue their state to protect residents’ federal constitutional rights. The success of a municipality’s claim will vary based on the constitutional right at issue and the federal circuit a municipality is located (for example, the Ninth Circuit bars all federal constitutional claims). If a city is barred by Hunter and its progeny, there is another (somewhat controversial) theory to bring suit: associational standing, which essentially allows the city to sue not as a local government itself, but rather as an organization acting on behalf of its residents and officials.
In light of these hurdles, litigating against the state can be a daunting prospect for a small city attorney’s office. Cities should consider banding together with either local or large nonprofits, advocacy groups, or unions seeking a similar goal. Some cities have enlisted pro bono or reduced cost assistance from a local law firm friendly to the cause, as did Highland Park, Illinois, teaming up with the Brady Center to Prevent Gun Violence and Perkins Coie to defend the municipality’s ban on assault weapons and large-capacity magazines.
Navigating around or fighting against preemption is always an underdog’s fight. Some statehouses are committed to making it worse by opening up rebellious cities to outside litigation or targeting local budgets. Arizona, for example, passed a law that would strip state funding to a municipality if it passes a law deemed in conflict with state law.
The risks are real, and in the realm of preemption lawmaking, states hold many of the cards. But cities still have options: They can cooperate, they can bluff, or they can raise the stakes. But they should never just fold.