This article appears in the February 2024 issue of The American Prospect magazine. Subscribe here.
There’s nothing historically novel about America’s politics dividing along urban vs. rural or cosmopolitan vs. parochial lines. One has to go back a full century, however, to find a time when the nation’s political fault lines ran so clearly along the city/country divide as they do today.
In the 1920s, cities were too Catholic and Jewish and freethinking for the countryside’s Protestant traditionalists, and new urban-based media (radio, movies) brought the taint of the new to rural communities whose susceptible young people were lighting out for the cities. Today, culture wars and economic conflicts also play out largely along urban/rural lines. Of the top 35 cities in America by population, only four have Republican mayors, and one of those, Eric Johnson of Dallas, Texas, was elected as a Democrat and switched parties in 2023.
Since Republican legislatures and governors can’t stop city residents from electing Democrats, however, they’ve devised a whopper of a Plan B: negating majority rule in those areas by denying those cities the right to enact any laws or promote any policies that run counter to the preferences of the governor and the legislature.
This trend began in 2016, when North Carolina nullified a Charlotte ordinance that penalized violations of LGBTQ rights. That same year, the majority-Black and majority-Democratic city of Birmingham, Alabama, passed a municipal minimum-wage statute, whereupon the Republican state legislature outlawed municipal minimum-wage laws. (Alabama is one of the five states, all in the South, that have never enacted a state minimum-wage law—still reeling, apparently, from the loss of all that unpaid labor in 1865.)
More recently, majority-Black and majority-Democratic Jackson, Mississippi, has had a crime problem, so the Republican Mississippi state legislature responded by enacting a law that stripped criminal trials from the jurisdiction of Jackson courts and established a new group of courts, with judges to be appointed by the state’s Republican chief justice. When Democratic Nashville established a civilian review board for its police, the Republican legislature and governor passed a law that banned civilian review boards. The underlying racism in such preemptions is never very far from the surface. The Republican neo-Dixiecrats who dominate Southern legislatures can no longer keep Blacks from voting, but they’ve found a way to keep Blacks, in the cities where they constitute clear majorities, from governing.
Of all the Republicans who have taken arms against majority rule, Texans have taken a commanding lead. In the past, the state had enacted laws to stop municipalities from creating local ordinances that protect tenants facing eviction and to stop cities and counties from regulating fracking within their boundaries. Last summer, however, the Texas legislature passed and Gov. Greg Abbott signed into law HB 2127, which its sponsors gloatingly called the “Death Star” bill for local governments. The law prohibits municipalities from enacting local ordinances that go beyond any state laws that deal with agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, and property.
The sweeping law negated local statutes like those that Dallas and Austin had enacted to require employers to give water breaks to construction workers in torrid summers. It further forbade cities from enacting any such ordinances that climate change or conscience might require. It’s so broad that it’s not clear just what kind and how many local laws and regulations it would negate.
According to recently departed Houston Mayor Sylvester Turner, it could well strike down regulations on noise (outdoor music festivals, beware), boarding houses, and tow-truck companies. It’s not really about any particular policy; in the words of Katie Belanger, lead consultant for the Local Solutions Support Center, a group founded in 2017 to help municipalities battle against what it terms abusive preemption, it’s “issue-agnostic.” What the law is really about is simply stopping cities and counties from legislating, unless their legislation mirrors the perspectives of the Republican-run state.
This isn’t reactive preemption; it’s anticipatory preemption—pre-preemption, if you will.
IN BLUE STATES, THE DIVERSE, URBAN CHARACTER of the Democratic Party generally presents no preemption problem. More than a decade ago, responding to the Fight for $15 campaign to raise minimum wages, Seattle and San Francisco raised their minimum wages higher than those of Washington state and California, respectively. Washington and California’s response was to follow their lead; both now have minimum wages at or above $16.
But cities have turned blue in red states, too, and as the gap between the two parties has widened to Grand Canyon–like dimensions, those red states have responded in the past two decades with a torrent of preemption. Initially, this served as a favor to big business. An early effort involved banning local taxes on sugared drinks or tobacco, for which those industries worked through the American Legislative Exchange Council (ALEC), the right-wing group that writes and lobbies for model anti-regulation legislation at the state level. The National Restaurant Association won preemption laws blocking localities from raising wages and establishing paid sick days or regular work-scheduling mandates.
“It was business, corporate special interests, that began this wave of preemption legislation,” says Belanger. “It’s only recently that preemption has become a tool for social conservatism, too.”
According to the Local Solutions Support Center, 700 preemption bills were introduced in state legislatures in 2023, virtually all of them by Republicans. By October, more than 90 had become law. That total doesn’t include acts of preemption that required no new law, such as Florida Gov. Ron DeSantis’s removals from office of the elected district attorney of Hillsborough County (Tampa) for his refusal to enforce the state’s new abortion law, and of the elected school board members of Broward County (Fort Lauderdale) for resisting the state’s new party-line (Republican) school curricula.
DeSantis is plainly not willing to cede the smash-the-cities crown to Abbott and the Texans. This summer, on a party-line vote, the Florida legislature passed and DeSantis signed into law a bill that its sponsors were calling “the preemption to end all government preemptions,” Texans having already appropriated the “Death Star” terminology.
Of all the Republicans who have taken arms against majority rule, Texans have taken a commanding lead.
The new law permits businesses (only businesses, not employees or individuals who’ve not established themselves as businesses) to sue local governments for ordinances or regulations they deem to be “arbitrary or unreasonable.” After receiving notice, the local government must immediately suspend that ordinance or regulation, simply by virtue of the suit having been filed. It’s then up to the court to decide whether the suit has merit, but even if the court rules against the plaintiff, the government must nonetheless keep its law or regulation suspended for an additional 45 days. Therefore, the law acts as a powerful tool to get laws businesses don’t like taken down for long periods of time, even if the complaints against them are totally frivolous.
And that’s not all: If the court rules for the plaintiff, the law or regulation is scrapped, and the city (or county) must pay the business’s attorney fees up to $50,000. If the municipality wins, it must absorb its own attorney fees. Both the disparity in who bears court costs and the weaponizing of preemption on behalf of business interests are likely to give pause to Florida city leaders from enacting any statute that might offend a corporation or local business.
Who could be behind such a breathtaking piece of legal chutzpah? Virtually the entirety of Florida’s small-business establishment, including the state’s Chamber of Commerce, the Florida Restaurant and Lodging Association, the Florida Alliance for Vacation Rentals, and Associated Industries of Florida, as well as big-business groups like the Koch brothers’ Americans for Prosperity. So for all its innovation, the law is well within the classic mode of preemption legislation, originating with businesses seeking to free themselves from regulation.
The law went into effect on October 1; as of this writing, no suit using its tools has yet been filed.
THOUGH NO ONE HAS BEEN HUNGRIER for media visibility over the past year than DeSantis, he signed the new Florida law behind closed doors, and has made no effort to publicize it. This uncharacteristic reticence exposes the Achilles’ heel of much preemption legislation: It’s not only unpopular with targeted cities and counties, but also with the public.
“Republicans don’t run on this kind of legislation; it’s just a way for them to get more campaign donations,” says Francesca Menes, who has headed a “table” where a wide range of Florida groups adversely affected by the preemption wave have been meeting. “This isn’t something they want the public to know.”
Menes has been reaching out to a range of groups—unions, immigrant rights organizations, community service providers, Planned Parenthood, LGBTQ advocates, environmental activists—with the message that preemption threatens all of them. “We have over 40 organizations at the table as of now,” she says.
Texas Republicans aren’t shouting from the housetops about their Death Star bill, either. “The law has very little grassroots support even in red counties,” says Luis Figueroa, who’s working on mobilizing a cross section of Texas constituencies against the law.
Figueroa points out that, as metro Texas continues to boom, the law could restrict newly incorporated suburban cities from enacting basic regulations. The coalition assembling in Texas includes many of the state’s leading cities, unions, and climate and reproductive rights groups, as you might expect. But it also includes the Catholic Conference of Bishops, who are concerned about suppressing both pornography and predatory lending; the latter is the subject of restrictions in 43 different Texas cities. As in Florida, “issue-agnostic” preemption engenders cross-issue opposition.
Opponents of the Death Star—call them the Rebel Alliance—have already notched an early and potentially decisive victory. A Texas court struck down the Death Star law on August 30, though it’s still on the books for now because state Attorney General Ken Paxton filed an appeal. The lawsuit, brought by the city of Houston, made clear that the Death Star law ran afoul of a 1912 amendment to the Texas constitution that required the state to show where an actual conflict existed between state law and a municipal ordinance. As the Death Star cited no such conflicts but rather warned cities against passing an ordinance that might be in conflict, the court upheld the lawsuit.
That 1912 amendment was just one of a large number of “home rule” provisions inserted into state constitutions during the Progressive Era, says Nestor Davidson, a law professor at Fordham University and a legal adviser to municipalities confronting state preemption. Home rule guarantees have waxed and waned over the course of American history. The Tenth Amendment to the Constitution reserves to states the powers not claimed by the federal government. No comparably clear delegation of powers between states and localities exists, however, and the U.S. Constitution makes no mention of local governments at all.
New England town meetings preceded the formation of New England states, Davidson points out, “but in the early 19th century, the Supreme Court ruled that cities and counties were creatures of the state,” which could create or disestablish them as they wished. Throughout most of the 19th century, localities existed under the “Dillon Rule” (named after a Columbia University law professor), which held, Davidson says, that “local authority should be narrow, and if ambiguous, favor the state over the municipality.” Regulations could be enacted at the local level only if the state legislature had empowered such actions.
What eroded the Dillon Rule was the rise of cities. Bowing to pressure from the burgeoning metropolis of St. Louis, Missouri amended its constitution in 1875 to give more authority to local governments, a move that many states followed as their cities grew. Another wave of urban empowerment altered state constitutions in the 1950s and ’60s, when “at least 42 cities,” Belanger says, bolstered their guarantees of home rule. During this time, however, Davidson notes, many constitutions also made clear that cities had no recourse if legislatures specifically overrode their ordinances.
That is decidedly not what the Death Star law did. However, the law, still on the books, is wending its way up to the Texas Supreme Court, which is a Republican Party institution, last seen effectively nullifying exceptions in the state’s anti-abortion law by inserting itself into the medical decisions of one woman.
The fate of Florida’s preemption-amok law is similarly unclear. “Normally, when somebody challenges a law, the court is deferential to the political process, to the law that that process created,” says Davidson. “So, it requires a high standard to get an injunction to stop a law.” Florida’s law requires no standard whatever and could be construed, Davidson adds, as turning courts into legislation-revocation machines, which could challenge the separation of powers doctrine that is enshrined in the federal and every state’s constitution.
HAPPILY, DAVIDSON POINTS OUT, STATE CONSTITUTIONS are a lot easier to amend than the federal Constitution. In many states, the public can institute those amendments through ballot measures.
Unhappily, no such rebalancing is likely to come in time to arrest the current burst of preemption that red states are inflicting on their cities. In Florida, Menes says, Republicans already have circulated a draft of a bill for this winter’s upcoming session that preempts most municipal labor ordinances, forbidding cities from mandating minimum wages for their own contract workers, from requiring heat breaks for construction workers, and perhaps from going after wage theft. There’s even been some discussion of a bill that would require cities to scrap ordinances that keep children from being out late without adult accompaniment in public, for fear that would impinge on employers’ right to use child labor. “In Florida,” says Menes, “things can always get worse.”
There’s a huge asymmetry between the two parties’ approaches to the regions where their rival party dominates. Through both the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, President Biden has jump-started investment in rural America, places that private capital had largely abandoned in recent decades. The Democrats see this public investment as a strategy to co-opt rather than preempt, to gain a political foothold on opposition turf.
Republicans, by contrast, view cities as the Visigoths viewed Rome. Unable to sufficiently disenfranchise urban voters, they are moving to disempower those voters’ governments. In the battle now before us to preserve and advance democracy, the fight for cities looms large.
