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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

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

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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.

Win a trip for two to Cascais, Portugal!

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Simon is a writer and filmmaker. He can be found on Twitter @SimonDavisCohen.

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