Law & the Courts

Let Liberal Cities Do What They Want

Bathroom sign in Durham, N.C., May 2016 (Reuters photo: Jonathan Drake)
The conservative case against state ‘preemption.’

Suppose that we have on our hands a federalist-minded conservative. It comes to his attention that, say, Hawaii has done something silly. Perhaps the well-meaning folks in Honolulu have increased the minimum wage to $15 an hour; perhaps they have decreed that rents cannot increase faster than inflation; perhaps they have decided that what the University of Hawaii at Manoa really needs is another three dozen gender-studies professors. Ours is a good conservative, so he shakes his head in dismay and suppresses a chuckle — but he is a good federalist, too, so he accepts that, strange and unfortunate though the ways of others may sometimes be, Hawaii is Hawaii’s to ruin.

The benefits of federalism are manifold, and were our man asked why the federal government shouldn’t intervene, he could recite them well: Apart from being the constitutional political arrangement, federalism is a damn good system. It promotes democracy, since it allows local constituencies to decree their own values and determine their own policies. It cools the American discourse and allows for easier compromise on contentious issues, for the same reason. It accounts for the possibility of local needs and local expertise: What works in one state may not work as well in another, and Boston likely knows better than Washington what Massachusetts needs. It averts the excessive consolidation of power, putting the American people on a more equal footing vis-à-vis their government, and thus acts in the service of liberty. In short, it is the sort of durable, just political arrangement that America has always depended on.

But suppose that our federalist conservative lives in Houston and he hears that Austin is up to something funny. His impulse, at least judging by the patterns of conservative governance in America recently, quite likely would be to call upon the governor and the Texas legislature to impose some good conservative policy on the renegade liberals from above. Conservatism at the national level is generally associated with localism and decentralization, but these principles tend to evaporate at the state level. This is a shame: The considerations that militate in favor of federalism on the national scale militate as well, with some exceptions, in favor of local governments and against state “preemption.”

State preemption, or the practice of state governments’ overriding local legislation, is widespread. The most notable recent case is that of North Carolina, which sparked a national debate over transgender bathrooms last year, when the general assembly overturned a Charlotte ordinance allowing transgender residents to use either male or female public restrooms. But most cases of state preemption get less press: Perhaps the most wide-ranging battle between state and cities is in Texas, where Governor Greg Abbott has been pushing for legislation that would preempt the “patchwork of local regulations” by mandating that local constituencies not pass occupational-licensing laws more rigorous than those set by the state. In Illinois, Governor Bruce Rauner has campaigned for a freeze on property taxes set by municipalities across the state. The Iowa House joined dozens of other states in March in blocking local minimum-wage hikes. Minnesota has preempted local paid-leave ordinances. Arizona has banned municipalities from banning plastic bags.

In part because of the collapse of the Democrats at the sub-national level and in part because even the most conservative states tend to have a few liberal cities, state preemption tends to be a Republican matter. This puts conservatives in an awkward position: There truly is no shortage of reckless regulations, unsustainable minimum-wage hikes, and illiberal ordinances across municipal America. Cities truly do act vindictively, irresponsibly, and illogically. Is it really such a bad idea to have Republican governors and Republican legislatures impose some sense?

Most of the time, it is. For starters, a consistent localism is the best hope for conservatives on the national scale. The politics behind federalism and behind localism are frustratingly anti-symmetrical: While state preemption is generally a story of conservative states’ overriding liberal municipalities, federalism is very often a story of conservative states’ wishing to operate independently of liberal federal policymaking. Conservatives cannot afford to propagate the school of thought that recalcitrant local politics justifies intervention from above — this sort of ends-justify-the-means theorizing has been, and will always be, used as a battering ram to impose progressive policies on rebellious states. Defending localist principles even when doing so runs at odds with conservative policies in the short-term would signal that conservatives are genuinely committed to decentralized, small government and would help counter the largely false but damaging charge that federalism is little more than a right-wing tactic.

But localism is also justified in its own right. The principle of democratic self-governance is a higher one than the principles of economic or social conservatism, attached though we should be to all of these. Whenever a town or county votes to govern itself in a certain way and is slapped down by the state, it is a small defeat for popular sovereignty. It is not the role of the state governments to ensure that the lower levels of government make the right choices: The freedom of individuals to govern themselves and the freedom of individuals to collectively err are inextricable. The best argument for federalism has always been that of self-governance: What matter is it to California what level of taxation Texas prefers? Likewise, what matter is it to Houston what set of regulations Austin wishes to adopt? If Austin wishes to make itself less competitive, so be it. That is Austin’s prerogative.

Nor are highly centralized polities necessarily better off. Particularly in our current, highly partisan age, one of the great benefits of localism is its tendency to quarantine disputes. Consider the acrimonious debate that North Carolina entered into when it repealed Charlotte’s ordinance on transgender bathrooms — a debate that poisoned the political atmosphere in North Carolina, helped nationalize the local politics, and was entirely avoidable. Even conservatives who staunchly opposed the Charlotte ordinance and agreed with the North Carolina legislature on the merits have cause to oppose state preemption in this instance: Now that the precedent exists for the state government to make the decision, it will be impossible for conservative and liberal constituencies to address the issue individually. If North Carolina elects a Democratic legislature in the near future, it will preclude municipalities from enacting socially conservative laws. In the long-term, this may be a bad bargain indeed for social conservatives.

This is not to say that localism at the municipal level and federalism are precisely analogous. Most crucially, the Constitution explicitly dictates the relationship between the states and the federal government, delegating certain domains of policymaking to the federal government and leaving the rest to the state. But there are no such constitutional provisions concerning local governments, which are treated, from a constitutional standpoint, as nothing more than convenient organs to enact powers delegated to them by the states.

There is no compelling reason for Arizona to ban its towns and cities from taxing plastic bags.

There are also practical differences: Since municipalities are far smaller than the states, it is not practicable to give them the same range of policymaking authority that the states have. State preemption of firearm laws, for instance, makes sense given that some level of legal uniformity is necessary to prevent gun owners from accidentally committing a crime whenever they cross a municipal boundary. Abbott’s preemptions in Texas go quite far, but there is a reasonable case to be made that some level of standardization of municipal regulations is worth the cost of constraining local governments, since businesses might otherwise avoid the state entirely. There are likewise cases where selfish municipal regulations hurt other communities in the state: When a city like San Francisco or New York passes zoning regulations that make it very hard to build housing, the cost is largely borne by residents of the metro area who wish to move into the city but can’t afford to pay the rents. Here, too, there is a case for state preemption.

But most examples are far more clear-cut. There is no such compelling reason for Arizona to ban its towns and cities from taxing plastic bags, or for Iowa to prevent towns from setting their own minimum wages, or for North Carolina to mandate a uniform set of social values. These may be tempting goals for conservatives, but they are ultimately in conflict with principles of self-rule and decentralization that are more compelling. Federalism is a wonderful concept, and it is wonderful for reasons that go beyond the Constitution and the relation of the states to the federal government. Conservatives should remember that.


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— Max Bloom is a student of mathematics and English literature at the University of Chicago and an editorial intern at National Review.

Max BloomMax Bloom is an editorial intern at National Review and a student of mathematics and English literature at the University of Chicago.


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