The Reconstruction-Era Legal Theory Preventing Cities and Towns from Responding to the Covid-19 Crisis

Radical times demand a radical re-conception of local politics.

Simon Davis-Cohen September 1, 2020

Mek Bitul held up a sign with the words, This Is The Tipping Point!!! in front of City Hall, joining nearly 1,000 people gathered to protest the death of George Floyd and in support of Black Lives Matter, in downtown, Los Angeles, CA, on Friday, June 5, 2020. Jay L. Clendenin / Los Angeles Times via Getty Images

States have severe­ly ham­pered cities’ capac­i­ty to respond to the demands of the nov­el coro­n­avirus and social move­ments alike. Sev­er­al have banned paid sick leave ordi­nances and refused to per­mit local evic­tion mora­to­ri­ums, while 19 hold a check on munic­i­pal­i­ties’ pow­er to expand broad­band net­works for those who need it. Ari­zona, Geor­gia, Flori­da, Mis­sis­sip­pi, South Car­oli­na, Texas, Ten­nessee and West Vir­ginia, among oth­ers, have under­mined city-wide efforts to impose stricter quar­an­tine mea­sures. As many as 48 states lim­it the fis­cal author­i­ty of local gov­ern­ments, often pre­vent­ing them from fill­ing the voids left by fed­er­al and state bud­get cuts.

In a June report pub­lished by the Amer­i­can Con­sti­tu­tion Soci­ety titled State Pre­emp­tion and Local Respons­es in the Pan­dem­ic,” authors Nestor David­son and Kim Had­dow found that states sab­o­tage any kind of holis­tic approach to Covid-19. Two weeks pri­or, New York Uni­ver­si­ty pro­fes­sors Jen­nifer Pomer­anz and Diana Sil­ver released a report of their own reveal­ing how cor­po­rate inter­ests and state leg­is­la­tors have been engaged in a con­cert­ed, often secret strat­e­gy to con­sol­i­date pow­er in state leg­is­la­tures. States, they write, lim­it the capac­i­ties of local gov­ern­ments to pro­tect their res­i­dents from pub­lic health harms while min­i­miz­ing the nation’s abil­i­ty to learn from local pol­i­cy exper­i­ments aimed at improv­ing pub­lic health.” We have also seen cor­po­ra­tions direct­ly over­turn local law­mak­ers, as I detailed in anoth­er June report titled Cor­po­ra­tions Are Suing Cities Across the USA.”

With Black Lives Mat­ter protests and the coro­n­avirus plac­ing a spot­light on munic­i­pal gov­ern­ments and their bud­gets, we are learn­ing what polit­i­cal activists have long known to be true: Real polit­i­cal change hap­pens from the bot­tom up. Before the fed­er­al gov­ern­ment divests from the mil­i­tary indus­tri­al com­plex, cities must defund their police depart­ments, rein­vest­ing their resources in long-neglect­ed social services.

But adopt­ing these kinds of urgent, rad­i­cal mea­sures won’t be easy. State pre­emp­tion” laws, writ­ten in con­junc­tion with cor­po­rate lob­bies and some­times police unions, have lim­it­ed the author­i­ty of local com­mu­ni­ties to enact min­i­mum wage increas­es, pub­lic edu­ca­tion reform, civ­il rights expan­sions and sus­tain­able poli­cies that would forge a more just and equi­table soci­ety. The answer, our polit­i­cal moment would sug­gest, is the eman­ci­pa­tion of munic­i­pal government.

The right has had a vir­tu­al monop­oly on local con­trol” in the pub­lic imag­i­na­tion. Iron­i­cal­ly, it is Repub­li­cans who have made sub­vert­ing munic­i­pal­i­ties part of a long-term strat­e­gy to pre­serve their grip on pow­er that includes anti-demo­c­ra­t­ic ger­ry­man­der­ing and vot­er sup­pres­sion. This is a real­i­ty the Amer­i­can left has failed to grap­ple with. Pre­dom­i­nate­ly white labor move­ments, and left­ist caus­es more broad­ly, have long ignored Black com­mu­ni­ties’ demands for con­trol over their own edu­ca­tion and the ways that racial inte­gra­tion has been used to quash the eco­nom­ic and polit­i­cal auton­o­my of com­mu­ni­ties of color.

For decades, there has exist­ed a false dichoto­my in which struc­tur­al cri­tiques of cen­tral­ized con­trol are dis­missed as lib­er­tar­i­an and calls for fed­er­al and state over­sight over local gov­ern­ments are decried as author­i­tar­i­an. The real­i­ty of Amer­i­can pol­i­tics demands a more nuanced analy­sis. States have lim­it­ed the polit­i­cal pow­er of activists, all but extin­guish­ing the social­ist poten­tial of local gov­ern­ments. Cor­po­rate-inter­est groups like the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), mean­while, have lob­bied for Sanc­tu­ary City Pre­emp­tion” laws that force local offi­cials to col­lab­o­rate with U.S. Immi­gra­tion and Cus­toms Enforce­ment, as well as oth­ers that pro­hib­it local gov­ern­ments from rais­ing liv­ing stan­dards and pro­tect­ing ecosys­tems. At the same time, con­ser­v­a­tives have used the courts to sys­tem­at­i­cal­ly restrict locals’ pow­er to gov­ern these cor­po­rate interests.

These tac­tics can be traced to a coun­ter­rev­o­lu­tion­ary legal doc­trine used to clamp down on redis­trib­u­tive poli­cies advanced dur­ing Recon­struc­tion. ALEC has tak­en it upon itself to explic­it­ly defend what is known as Dillon’s Rule—a the­o­ry that holds there is no pow­er local gov­ern­ments pos­sess that a state leg­is­la­ture can­not super­sede. Today, the rule pro­vides the legal frame­work for pre­emp­tion and the emer­gency man­age­ment” of pre­dom­i­nant­ly Black and Lati­no school dis­tricts (and cities). In the late 19th cen­tu­ry, it was used to repress munic­i­pal activism and incip­i­ent social­ism. Dur­ing the same legal era, cor­po­ra­tions were arbi­trar­i­ly grant­ed per­son­hood” by the U.S. Supreme Court, which helped to ensure that new­ly enfran­chised Black Amer­i­cans and immi­grant pop­u­la­tions would not be able to pass laws that might infringe on white cor­po­rate power.

To rel­e­gate this Jim Crow-era the­o­ry to the dust­bin of his­to­ry, we must first rec­og­nize that pre­emp­tion itself is val­ue-neu­tral. Pre­emp­tion is often used for good, like when the fed­er­al gov­ern­ment over­turns dis­crim­i­na­to­ry laws or when a state stops a city from total­ly destroy­ing a local ecosys­tem. In the South and else­where, how­ev­er, pre­dom­i­nant­ly con­ser­v­a­tive white politi­cians have been able to use pre­emp­tion to impose their will on com­mu­ni­ties of col­or and to ban more pro­tec­tive local law­mak­ing. And so as long as states can uni­lat­er­al­ly erase or ban gen­uine expres­sions of local eco­nom­ic, social, racial, and envi­ron­men­tal jus­tice, we must con­sid­er the cur­rent par­a­digm fun­da­men­tal­ly undemocratic.

In the Mil­bank Quar­ter­ly, Derek Carr, Sab­ri­na Adler and Ben­jamin Winig of Change­Lab Solu­tions, and Jen­nifer Karas Mon­tez of Syra­cuse Uni­ver­si­ty reimag­ine the use of pre­emp­tion. An equi­ty-first pre­emp­tion frame­work,” they write, can facil­i­tate case-by-case assess­ments of whether pre­emp­tion is like­ly to wors­en inequities or whether it is an appro­pri­ate response to address exist­ing inequities.” Under their pro­pos­al, states would be able to pre­empt forms of local dis­crim­i­na­tion, per­haps with more author­i­ty than they cur­rent­ly have under exist­ing civ­il rights law, but they would not be allowed use pre­emp­tion to sub­vert min­i­mum wage laws, the expan­sion of work­er ben­e­fits or any oth­er mea­sures that might decrease inequality.

The authors set forth their vision as follows:

An equi­ty-first frame­work also would alter how we dis­tin­guish var­i­ous forms of pre­emp­tion. Under exist­ing frame­works, pre­emp­tion laws are clas­si­fied pri­mar­i­ly on the basis of their mechan­i­cal oper­a­tion – that is, whether the law estab­lish­es a reg­u­la­to­ry floor that allows low­er-lev­el gov­ern­ments to impose fur­ther reg­u­la­tions, a reg­u­la­to­ry ceil­ing that pro­hibits any addi­tion­al reg­u­la­tion, or a reg­u­la­to­ry vac­u­um in which a high­er-lev­el gov­ern­ment does not estab­lish any reg­u­la­tions of its own but still pro­hibits low­er-lev­el gov­ern­ments from enact­ing any reg­u­la­tions relat­ed to the giv­en sub­ject. An equi­ty-first frame­work, in con­trast, would clas­si­fy pre­emp­tion based on its antic­i­pat­ed impact on health and health equity.

Beyond pro­pos­als like these, my col­leagues at the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) have been work­ing with a num­ber of local groups chal­leng­ing the pre­em­i­nence of Dillon’s Rule and the anti-demo­c­ra­t­ic forces it enables. CELDF has helped draft and defend the first Rights of Nature laws in the Unit­ed States with the aim of simul­ta­ne­ous­ly sub­or­di­nat­ing con­sti­tu­tion­al pro­tec­tions for cor­po­ra­tions. It has also put forth a new legal doc­trine that rede­fines state law as a floor” to which local com­mu­ni­ties can add civ­il, human and eco­log­i­cal rights pro­tec­tions. In the CELDF pro­pos­al, the author­i­ty of local gov­ern­ments would trump cor­po­ra­tions’ claimed protections.

One amend­ment under con­sid­er­a­tion in the Penn­syl­va­nia leg­is­la­ture, intro­duced in response to sup­pres­sion efforts by the fos­sil fuel indus­try, has earned the endorse­ment of anti-pipeline groups and a grow­ing net­work of munic­i­pal gov­ern­ments, along with local and state offi­cials who would great­ly ben­e­fit from a new sta­tus quo.

This is about more than win­ning greater pro­tec­tions for local activists; it’s about trans­form­ing our under­stand­ing of gov­ern­ment — both how it works and who it serves. In Mis­souri, for exam­ple, cities with pre­dom­i­nant­ly Black pop­u­la­tions like Kansas City and St. Louis are not even allowed to vote on rais­ing the min­i­mum wage. (The for­mer is policed by a gov­er­nor-con­trolled force, while else­where in Mis­souri, the leg­is­la­ture and the agri­cul­ture indus­try have stripped rur­al com­mu­ni­ties’ author­i­ty to over­see cor­po­rate farm­ing.) Whether its rent con­trol, police account­abil­i­ty, paid sick-leave expan­sions or pro­tec­tions for non-cit­i­zens, social move­ments are demand­ing local pow­er, now. And as the cli­mate cri­sis inten­si­fies, the need to lib­er­ate our munic­i­pal­i­ties only grows more urgent.

Re-imag­in­ing an activism that address­es this cri­sis and oth­ers demands recon­cep­tu­al­iz­ing the very pur­pose of the law, but that can­not mean empow­er­ing munic­i­pal gov­ern­ments alone. This would raise very real risks of reac­tionary local con­trol. Instead, we must make pre­serv­ing civ­il, human and eco­log­i­cal rights the law’s top pri­or­i­ty while simul­ta­ne­ous­ly free­ing cities to build upon those pro­tec­tions. And while the Mil­bank Quar­ter­ly mod­el aims to reduce inequal­i­ties, it does not go so far as to explic­it­ly reori­ent the law away from prop­er­ty rights toward safe­guard­ing those of liv­ing peo­ple and the nat­ur­al world.

For­mer Demo­c­ra­t­ic Speak­er of the House Tip O’Neil famous­ly said that all pol­i­tics is local. Only by think­ing in big, struc­tur­al terms can we begin to treat them accordingly.

Simon is a writer, film­mak­er, and works part time for the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund. He edits the Ear to the Ground newslet­ter and can be found on Twit­ter @SimonDavisCohen

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