After consolidating power in Washington, D.C., and state capitals under President-elect Donald TrumpDonald TrumpSocial media users troll GOP, Trump over ObamaCare repeal The Memo: Winners and losers from the battle over health care Trump angry Kushner, Ivanka went skiing during health debate: report MORE, Republicans are moving to prevent large cities dominated by Democrats from enacting sweeping liberal agendas.
Republican state legislatures are planning so-called preemption laws, which prevent cities and counties from passing new measures governing everything from taxes to environmental regulations and social issues.
“What we see is circumventing the process that’s in place,” said Linda Upmeyer, the Republican speaker of the Iowa state House. “I think we will likely look at language on preemption so that the state is making decisions where it ought to, and cities and counties are making decisions where they should.”
Democrats and city officials, however, see the preemption laws as a power grab aimed at limiting local governance in their party’s last bastions of political power — which have become ground zero in the fight to resist Trump.
Preemption laws are nothing new in American history. The Supremacy Clause in the U.S. Constitution makes clear that federal law supersedes state law, and similar clauses in state constitutions give state laws precedence over local laws.
In recent decades, tobacco companies have used preemption laws to overcome local smoking bans, and the National Rifle Association turned to preemption to block cities from implementing new gun control measures.
But in the last four years, after Republicans swept to power in legislatures across the country, the number of issues on which states are asserting their rights has skyrocketed, said Mark Pertschuk, director of the Oakland-based Grassroots Change, which keeps close tabs on preemption legislation.
The tension has grown as cities experiment with measures to raise revenue, keep their citizens healthy or add new protections for workers — and as Republicans have won control of states where Democrats still run large cities.
“In the past 10 to 15 years, cities have become the laboratories of innovation,” said Brooks Rainwater, director of the Center for City Solutions at the National League of Cities, which opposes local preemption laws. “The discordant views of those at the local level and those at the state level have led to some real challenges.”
The conservative American Legislative Exchange Council has offered five sample preemption bills on everything from local minimum wage hikes to rules governing genetically modified food and other agriculture products.
In just the last month, legislatures in Michigan and Wisconsin have passed laws preempting local governments from banning plastic grocery bags. In the last few years, courts have upheld the rights of Colorado and Texas legislators to prevent municipalities from banning hydraulic fracturing, also known as fracking, within their borders. Ohio is the latest state to preempt local efforts to raise the minimum wage, after Cleveland tried to boost wages for its lowest-paid workers.
Proponents of local control worry that with the incoming Trump administration, even more power will bleed away from cities and counties. The outgoing Obama administration sided with municipal utilities in Chattanooga, Tenn., and Wilson, N.C., when the utilities wanted to expand access to broadband internet services beyond city borders. Republican-led legislatures in both states blocked those efforts, before the Federal Communications Commission stepped in.
Anticipating the number of measures likely to spring up in legislatures in the coming months, Pertschuk added: “This is going to be the worst year we’ve ever had.”
Even the controversial HB2 law, passed last year by North Carolina’s Republican-controlled legislature, is a preemption law: It blocked the city of Charlotte from enforcing anti-discrimination measures that were stronger than statewide laws already on the books.
This year, measures similar to HB2, preempting local protections for gays, lesbians and transgender people, have already been filed in states like South Carolina, South Dakota and Texas.
Legislators in other Republican-led states are likely to target so-called sanctuary cities, which give shelter to undocumented immigrants. Pennsylvania Republicans are likely to consider ways to preempt a new tax on sodas and sugary beverages in Philadelphia. And Virginia Republicans hope to reduce a municipality’s ability to play favorites among developers.
“Localities are struggling for dollars,” Virginia state Sen. Bryce Reeves (R) said. But, he added: “Those powers not directly enumerated down to the counties, they can’t do. What you’ve seen is kind of an overstepping of those bounds.”
At least some Republican-dominated states are considering what Pertschuk calls “blanket preemption” laws, similar to a measure Arizona lawmakers passed last year. That law would allow the state to cut off funding to cities that refuse to give up laws that run counter to state law.
The city of Tucson is in the midst of a legal battle over a local gun control measure that Attorney General Mark Brnovich (R) says stands in contrast to state law.
Some Democrats say preemption laws circumvent the will of voters in big cities and represent hypocrisy from Republicans who cite the 10th Amendment in fighting for states’ rights. But Republicans say most power should rest with the states, rather than the federal government or localities.
“The states created the federal government, not the other way around,” said Keith Faber, an Ohio Republican state senator who sponsored the minimum wage preemption law. “So when we talk about local control, we mean state control.”