Preemption Prevents Innovation: We must not let states squash local policy experimentation.

 In In the News, Policy, Policy Blog

Image: Urbanfeel Flickr

By Ben Seigel and Brooks Rainwater

March 6, 2017, at 7:00 a.m.

Originally published by US News & World Report.

As the battle lines are forming between so-called sanctuary cities and the Trump administration, local jurisdictions across the country ought to be bracing for a much larger federalism fight: the stifling of social and economic progress by their own state governments.

City leaders work tirelessly every day to reflect their community’s values and represent the people who elected them to office, and yet throughout the country, state legislatures are stopping cities from taking action on a vast array of issues – from making local decisions on guns, smoking in public places, requirements for employers to provide paid sick leave and even setting clearer standards for restaurant menus.

State governments are using a tactic known as “preemption,” based on the constitutional principle that state laws supersede local laws. In many recent cases, it is allowing conservative-leaning legislatures to dictate what their more liberal urban citizens can and cannot do.

A preemption surge is especially worrisome because cities have traditionally been laboratories for policy innovation. They have served as a testing ground for federal laws such as the minimum wage, which was originally implemented in New York City bakeshops in 1895 before ultimately becoming federal law in 1938 with the passage of the Fair Labor Standards Act.

More recently, local experimentation by cities and counties in the financing and delivery of social services has caught on at the federal level. For example, Salt Lake County’s expansion of early childhood education through privately guaranteed funding instruments, known as social impact bonds, has paved the way for “pay for success” legislation at the federal level.

Additionally, policy innovation spreads across urban areas as connected 21st century cities learn from each other in implementing local policies that increase opportunity and protect the civil rights of residents, as has been the case in recent years with the growing number of locales passing inclusionary housing and nondiscrimination ordinances.

In other areas, too, cities are leading the charge in putting forward solutions to the defining challenges of the day from climate change to skills gaps. Such policy leadership at the city level, coupled with sustained gridlock in Washington, has led the Brookings Institution to dub this the era of “New American Localism.” However, in the era of President Trump, the golden age of localism could be short- lived.

The 21st Century Cities Initiative recently published a policy brief on the rise of state preemption and some strategies cities have pursued to combat it. And a new report from National League of Cities, “City Rights in an Era of Preemption,” examines preemption in seven policy areas – minimum wage, paid leave, anti-discrimination, home sharing, ride sharing, municipal broadband and tax and expenditure limitations. The report finds both an increase and vast variation in preemption.

Examples of this can be seen most recently with conservative state legislatures and governors pushing back on cities. North Carolina has been in the national spotlight after the city of Charlotte passed an ordinance banning discrimination against LGBT people. The state legislature enacted a law that reversed it while also barring every city in the state from passing similar nondiscrimination laws. In an attempt to drum up support from businesses, the state law also prevented jurisdictions from increasing the local minimum wage. Given the bottom-up history of the federal minimum wage law, it is ironic that 24 states now have top-down laws banning local municipalities from passing their own minimum wage ordinances.

The preemption surge has largely focused on core conservative causes pushed by the National Rifle Association, the American Legislative Exchange Council and religious right lobbies. But to date, states have shown little interest in preempting laws supporting affordable housing, local hiring, local taxes for transit, infrastructure, education and other local investments. In fact, these tend to be areas where pragmatism to get things done wins out over ideological disagreements.

But all of this could change under President Trump. If his administration and Congress drastically cut the federal budget for domestic discretionary programs as is expected, cities will face more urgency to pursue innovative policies and find creative funding solutions to address economic and social disparities and provide education, health and human services. At the same time, in some or all of the 25 states where governor mansions and legislatures are controlled by Republicans, the urban innovation could be thwarted through pressure to fall in line with the White House and Congress.

Preempting cities from expanding rights, building stronger economies and promoting innovation can be counterproductive and even dangerous. In the short term, further use of preemption would likely have devastating impacts on low-income and otherwise vulnerable populations in American cities. In the longer term, the squashing of localism means that innovative and creative public policy will suffer. Decision-making should not be divorced from the core wants and needs of community members; in the end, the losers not only will be our cities but also states and the nation as a whole.

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