by Nestor M. Davidson, Albert A. Walsh Professor of Real Estate, Land Use and Property Law, Fordham Law School
*An Issue Brief on this subject by Richard Briffault, Nestor Davidson, Paul Diller, Olatunde Johnson, and Richard Schragger, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, is available on the ACS website.
Something has gone seriously awry in state-local relations.
On February 22, 2016, the Charlotte City Council adopted an ordinance extending municipal non-discrimination protections to gay, lesbian, bisexual and transgender people, as scores of local governments have done. Within a month, the North Carolina legislature was called into an extraordinary special session and in the space of a single day passed legislation through both houses that blocked Charlotte’s ordinance. North Carolina’s move understandably generated significant national outrage, but was only emblematic of a wave of preemptive state legislation targeting local governments that is becoming all too common.
Across the country, cities are innovating to meet a host of pressing challenges—enacting minimum wage and paid sick leave legislation, expanding civil rights, protecting the environment, revolutionizing public health, welcoming immigrants, and pursuing many other policies that advance critical goals. In response, state legislatures—not surprisingly, most notably in states with conservative state governments that are home to progressive cities—have been repeatedly shutting down avenues of local policymaking, preempting municipal act after municipal act, and moving to limit local authority more broadly.
States, moreover, have begun to pass measures that not only block local democracy, but also seek to punish local governments—and individual local officials—for policy disagreements. This past May, for example, Texas Governor Greg Abbott signed anti-sanctuary city legislation that not only sought to force local governments in the state to cooperate with federal immigration enforcement against their better judgment, but also threatened individual fines of up to $25,000 a day, removal from office, and even incarceration for local officials.
Fortunately, cities, local officials, advocacy groups, and citizens are responding to this troubling preemptive assault. Despite the quite limited formal authority that local governments often possess in the face of state commands, litigation asserting a range of state and federal constitutional protections is growing. Although the record is mixed, some of these claims—such as state constitutional bans against unfairly targeting local governments, constitutional constraints on state legislative procedure, and a variety of federal concerns—have found a receptive hearing from courts faced with clear state overreach.
Indeed, in Texas just this past August, the small community of El Cenizo, nestled along the Rio Grande border, with a population of roughly 3,300, secured a preliminary injunction against the state’s anti-sanctuary city law on the eve of the law’s effective date. A federal District Court found several constitutional infirmities in the statute, including First Amendment, Fourth Amendment, Due Process, and federal supremacy concerns.
Protecting local progress in the face of state preemption is an uphill battle. But the growing number of conflicts arising from the states and the increasingly punitive nature of state preemption are spurring creative advocacy. Because it now falls to cities to take a leading role in advancing equity, inclusion, sustainability, and other critical priorities, finding and replicating instances of successful local advocacy and thinking anew about how appropriately to protect local democracy could not be more urgent.