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.
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.”