Cities Go Rogue Against Trump and the Radical Right

In a sea of red, blue enclaves test their power to rebel.

Theo Anderson February 23, 2017

With the White House and many statehouses in the hands of the Dark Side, cities may be our only hope. (Illustration by Adam Rufino)

On Jan­u­ary 25, Pres­i­dent Don­ald Trump signed an exec­u­tive order promis­ing to strip fund­ing from the so-called sanc­tu­ary cities that have vowed to defy his plan to deport mil­lions of undoc­u­ment­ed immi­grants. Whether and how the order can be enforced is yet unclear, but it sent an unsub­tle mes­sage to cities like New York, Chica­go and Los Ange­les: Resis­tance will not be tolerated.

Preemption laws are deeply and aggressively racist, given the demographics involved: State legislatures, representing largely white populations, impose their will on urban areas.

In Texas, Repub­li­can Gov. Greg Abbott is already wag­ing a proxy bat­tle over immi­gra­tion with the city of Austin. Sal­ly Her­nan­dez, the sher­iff of Travis Coun­ty, which includes Austin, announced on inau­gu­ra­tion day that her depart­ment would coop­er­ate min­i­mal­ly with fed­er­al offi­cials on depor­ta­tions. Abbott respond­ed by can­celling $1.5 mil­lion in crim­i­nal jus­tice grants to the county.

The emerg­ing bat­tle over sanc­tu­ary poli­cies rep­re­sents a new real­i­ty under the Trump admin­is­tra­tion: Faced with his reac­tionary agen­da, cities are going their own way. Their bat­tle to pre­serve local con­trol is among the most momen­tous on the polit­i­cal hori­zon. Local gov­ern­ments are already one of the pri­ma­ry vehi­cles for pass­ing pro­gres­sive poli­cies, hav­ing enact­ed a wave of labor and envi­ron­men­tal pro­tec­tions in recent years. In 2016 alone, for exam­ple, 18 cities approved min­i­mum-wage increases.

Now, cities are ground zero for the resis­tance to the Trump agen­da. Six­ty-eight may­ors signed an open let­ter to Trump in Novem­ber 2016, affirm­ing that each of our cities is com­mit­ting to ambi­tious tar­gets to reduce green­house gas emis­sions, … share lessons and hold each oth­er account­able.” And as Trump attempts to stack his cab­i­net with Wall Street tycoons and anti-union CEOs, cities like Cleve­land and San­ta Fe, N.M., are explor­ing ways to build net­works of work­er coop­er­a­tives and estab­lish munic­i­pal­ly owned banks. 

But in order to resist, local gov­ern­ments will have to stand up not only to Trump but to GOP-con­trolled state­hous­es. The for­mer task may actu­al­ly be eas­i­er. Many legal experts say that, under the 10th Amend­ment, the fed­er­al gov­ern­ment can­not force states and cities to car­ry out its laws under threat of los­ing fund­ing. On Jan­u­ary 31, cit­ing this ratio­nale, San Fran­cis­co became the first city to file suit against the Trump admin­is­tra­tion for its order to with­hold fund­ing from sanc­tu­ary cities.

Repub­li­can state leg­is­la­tures, how­ev­er, have also gone on the offen­sive against local­ly enact­ed pro­gres­sive poli­cies, and they are in a strong posi­tion— legal­ly and polit­i­cal­ly — to impose their will. The GOP now con­trols both cham­bers of 32 state leg­is­la­tures and the governor’s office in 33 states.

The GOP’s means of attack is tried-and-true: For years, it has cham­pi­oned so-called pre­emp­tion laws, which pro­hib­it local gov­ern­ments from adopt­ing poli­cies that con­flict with those of their state’s — in oth­er words, stop­ping pro­gres­sive changes before they start. In 2011, the Wis­con­sin leg­is­la­ture over­rode Milwaukee’s paid sick leave law, which had passed by bal­lot ini­tia­tive with 69 per­cent of the vote. The rightwing Amer­i­can Leg­isla­tive Exchange Coun­cil quick­ly dis­trib­uted the bill as mod­el leg­is­la­tion for oth­er states. To date, at least 20 oth­er states have suc­cess­ful­ly passed laws that pre­empt local­ly estab­lished min­i­mum wages, most of which also pre­empt­ed paid sick leave laws. In Decem­ber 2016, for exam­ple, Ohio passed a law pre­vent­ing cities from rais­ing their wage floors above the state’s stan­dard, then $8.10 an hour. As a result, Cleve­land scrapped a spe­cial elec­tion to approve a $15-an-hour wage. Ten­nessee has recent­ly passed bans on city laws that aimed to reduce pover­ty, includ­ing paid sick leave and wage theft measures.

It’s worth not­ing that efforts to pre­empt local pro­gres­sivism aren’t lim­it­ed to the GOP. In late Jan­u­ary, Dereck Davis, a Demo­c­ra­t­ic state leg­is­la­tor in Mary­land, intro­duced a bill that would ban cities and coun­ties from rais­ing their min­i­mum wages. Indus­try has adopt­ed sim­i­lar tac­tics. Last spring, for exam­ple, oil and gas inter­ests suc­cess­ful­ly sued to block local frack­ing bans in Col­orado on the grounds that they con­flict­ed with the state constitution.

As the Trump admin­is­tra­tion pledges to open up” domes­tic ener­gy pro­duc­tion, it’s not hard to imag­ine com­mu­ni­ties that try to reg­u­late gas and oil drilling will like­ly be hit with fur­ther pre­emp­tion laws. Red states could go even fur­ther and attempt to inflict col­lec­tive pun­ish­ment via fund­ing cuts on rebel­lious cities, even if the fed­er­al gov­ern­ment is ulti­mate­ly barred from doing so. It’s not just Texas Gov. Abbott’s feud with Travis Coun­ty; last year, in a sweep­ing attempt to sti­fle pro­gres­sive mea­sures, Ari­zona passed a bill cut­ting off shared rev­enue to towns and cities that enact poli­cies in con­flict with state law. In response, the may­or of Phoenix, Greg Stan­ton, recent­ly told Slate that we believe strong­ly that it’s uncon­sti­tu­tion­al, and we’re going to adopt pub­lic poli­cies that are smart for our cities, regardless.”

Rules for rad­i­cal cities 

Such bat­tles hinge on a com­plex set of legal and polit­i­cal ques­tions around local auton­o­my. For the state to say you’re only allowed to pro­tect your­self as much as we say you can — that vio­lates their right to self-gov­ern­ment,” says Ben Price, nation­al orga­niz­ing direc­tor for the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund. The Penn­syl­va­nia-based group works from a rights-based par­a­digm — the rights of com­mu­ni­ties to pro­tect their peo­ple and the nat­ur­al resources on which they depend — and has col­lab­o­rat­ed with more than 200 com­mu­ni­ties on laws that ban frack­ing, fac­to­ry farm­ing, water pri­va­ti­za­tion and oth­er haz­ards to com­mu­ni­ty well-being.

The U.S. Con­sti­tu­tion doesn’t assign spe­cif­ic pow­ers to cities, but the guid­ing prin­ci­ple has long been Dillon’s Rule,” named after a judge who, in the 1860s, affirmed that the activ­i­ties of cities must be sanc­tioned by the state gov­ern­ment. The rule priv­i­leges state over city author­i­ty if there is a rea­son­able doubt.

That’s the basis for state pre­emp­tion laws, but Dillon’s Rule is less fixed and absolute than it may appear. There is room to maneu­ver on a case-by-case basis, and some cities have had pre­lim­i­nary suc­cess launch­ing legal chal­lenges to pre­emp­tion laws. The high stakes in this fight are clear right now in Kansas City, Mo., where labor activists won a court bat­tle in Jan­u­ary that allows their peti­tion for a $15-an-hour wage to be put to vot­ers, despite a 2015 state law pro­hibit­ing cities from enact­ing their own min­i­mum wages. Vot­ers will decide the fate of the peti­tion in April. Even if suc­cess­ful, it is cer­tain to face a law­suit, whether from the state or from busi­ness interests.

The legal sys­tem isn’t the only hope for push­ing back against state pre­emp­tion laws. The court of pub­lic opin­ion and the force of polit­i­cal pres­sure count for some­thing, too. 

Andrew Gillum, may­or of Tal­la­has­see, Fla., hopes to chan­nel those ener­gies through the Cam­paign to Defend Local Solu­tions (CDLS), an ini­tia­tive he found­ed in ear­ly Jan­u­ary. He envi­sions CDLS as a resource that col­lects the expe­ri­ences and voic­es of law­mak­ers and school board mem­bers and may­ors and city coun­cil mem­bers who are all expe­ri­enc­ing what it feels like to sit under the thumbprint of leg­is­la­tors who are attempt­ing to take pow­er from local gov­ern­ments.” The day after Trump issued his exec­u­tive order threat­en­ing to pun­ish sanc­tu­ary cities, CDLS put out a state­ment say­ing that it would do every­thing it could to defend them.

Gillum is being per­son­al­ly sued by gun-rights groups for not repeal­ing city gun-con­trol reg­u­la­tions that con­flict with state law. The groups lost their case in 2015. It is now being heard by a court of appeals. My fear is that there is no end to what issues these folks decide to pre­empt us on,” he says. The push for local ini­tia­tives has at least two pow­er­ful, gal­va­niz­ing argu­ments on its side. One is that cities are putting into prac­tice the tra­di­tion­al wis­dom that local gov­ern­ment is the best form of gov­ern­ment. Frankly, a while ago, that was a reg­u­lar talk­ing point of con­ser­v­a­tives,” says Gillum.

A sec­ond pow­er­ful argu­ment against pre­emp­tion is that the laws are deeply and aggres­sive­ly racist, giv­en the demo­graph­ics involved: State leg­is­la­tures, rep­re­sent­ing large­ly white pop­u­la­tions, impose their will on urban areas with high per­cent­ages of minori­ties. It’s sort of the old school, South­ern, Jim Crow racism — pre­vent­ing peo­ple of col­or from self-gov­ern­ing,” says Sam Munger, direc­tor of strate­gic engage­ment at State Inno­va­tion Exchange, a non­prof­it devot­ed to work­ing with state leg­is­la­tures on pro­gres­sive leg­is­la­tion. In the case of Cleve­land, for exam­ple, the state’s pop­u­la­tion is about 83 per­cent white and 13 per­cent African Amer­i­can. The city’s pop­u­la­tion, how­ev­er, is about 35 per­cent white and 50 per­cent African Amer­i­can. The high-pro­file bat­tle over sanc­tu­ary cities will like­ly make the racism of the state and fed­er­al pre­emp­tion efforts all the more explicit.

Pre­empt­ing the preemptors 

If Texas is any indi­ca­tion, the attempt to pre­empt sanc­tu­ary cities could also help mobi­lize stronger local coali­tions. The grav­i­ty of the threat demands — and is inspir­ing — a new resourcefulness.

Texas activists have faced hos­til­i­ty from the GOP-dom­i­nat­ed state for years. In 2011 and 2015, the gov­er­nor want­ed to ban sanc­tu­ary cities, but bills to do so were defeat­ed in the leg­is­la­ture. Now Gov. Abbott’s retal­i­a­tion has the force of the fed­er­al gov­ern­ment behind it. But the coali­tion that came togeth­er to defeat the 2011 and 2015 bills is still intact.

It con­sists pri­mar­i­ly of immi­grant-advo­ca­cy groups; busi­ness inter­ests that rely on immi­grant labor; some local law enforce­ment offi­cials; and faith lead­ers, includ­ing Lati­no evan­gel­i­cal Christians.

Find­ing the untapped voice is impor­tant,” says Adri­ana Cade­na, coor­di­na­tor for Reform Immi­gra­tion for Texas Alliance, a coali­tion of immi­grant-rights groups that helped defeat the pair of state bills. She says that Lati­no evan­gel­i­cal pas­tors, usu­al­ly asso­ci­at­ed with right-wing pol­i­tics, proved to be that untapped voice” in those fights. Hun­dreds of them came to Austin to tes­ti­fy against the bills.

Undoc­u­ment­ed activists point out that exist­ing sanc­tu­ary city poli­cies are far from per­fect. They often, for exam­ple, exclude those with crim­i­nal records from pro­tec­tion, per­pet­u­at­ing what many say is a harm­ful divi­sion between good” and bad” immi­grants. But defend­ing local democ­ra­cy is a cru­cial first step if activists are to suc­ceed in pres­sur­ing elect­ed munic­i­pal offi­cials to adopt more com­pre­hen­sive poli­cies for eco­nom­ic, social and envi­ron­men­tal justice.

A sim­i­lar real­iza­tion helped mobi­lize a broad coali­tion to defeat a pre­emp­tion law last year in New Orleans. In 2015, the city passed a Hire NOLA” ordi­nance that requires con­trac­tors on pub­lic projects in excess of $150,000 to make a good faith effort to hire a min­i­mum num­ber of dis­ad­van­taged” Orleans Parish res­i­dents, includ­ing the home­less, sin­gle par­ents, the chron­i­cal­ly unem­ployed and peo­ple who earn less than half the medi­an income for the area.

A bill to pre­empt the ordi­nance was intro­duced by a state sen­a­tor and unan­i­mous­ly approved by a state sen­ate com­mit­tee in April 2016. A coali­tion of civic lead­ers, faith groups, labor orga­ni­za­tions and human-rights groups, how­ev­er, refused to give ground, launch­ing a series of ral­lies, let­ter-writ­ing cam­paigns and lob­by­ing efforts. The coali­tion includ­ed groups who hadn’t been involved in pass­ing the local-hire law but real­ized that set­ting a prece­dent of pre­emp­tion could hurt their issues as well. At a Sen­ate com­mit­tee hear­ing, for exam­ple, sev­er­al advo­cates for the LGBTQ com­mu­ni­ty tes­ti­fied that the pre­emp­tion law could pre­vent local com­mu­ni­ties from pass­ing their own laws to pro­tect sex­u­al minori­ties. The bill was killed in the House after the Sen­ate had passed it.

Sam Munger says it will be key, going for­ward, to orga­nize around these kinds of eco­nom­ic jus­tice issues that have broad local sup­port. But it’s also cru­cial to keep an eye on the big­ger pic­ture: The GOP and cor­po­ra­tions are per­fect­ing strate­gies to shut down progress nationwide.

It’s impor­tant to keep [this] dynam­ic in mind,” he says. Oth­er­wise, it’s hard to see this for what it is — an orga­nized, pre­med­i­tat­ed tac­tic that’s repro­duced by the same com­pa­nies and con­ser­v­a­tive enti­ties again and again.”

Theo Ander­son is an In These Times con­tribut­ing writer. He has a Ph.D. in mod­ern U.S. his­to­ry from Yale and writes on the intel­lec­tu­al and reli­gious his­to­ry of con­ser­vatism and pro­gres­sivism in the Unit­ed States. Fol­low him on Twit­ter @Theoanderson7.
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