//  4/7/17  //  Commentary

A great deal of attention has been focused on the Trump administration’s attacks on sanctuary cities, and city resistance to Trump throughout the country.  On March 29, Seattle became the most recent city to file a lawsuit seeking a declaration that Trump’s executive order threatening to withhold funds from so-called sanctuary cities is unconstitutional.  Many commentators think those cities have the law on their sides.

All the attention on sanctuary cities, however, has obscured a much more imminent threat to city power: states.  The last few years have witnessed an explosion of preemptive state legislation challenging progressive local ordinances across a multitude of policy areas.  The Trump campaign’s anti-urban rhetoric did not create this backlash against the cities—cities were already being targeted by hostile state legislatures.  But the Trump administration continues to fan anti-city flames.  American cities are under siege and state legislators have become increasingly unrestrained.

Cities cannot invoke the protections of the U.S. Constitution when states withhold funds or block local legislation.  The Texas Governor is thus free to threaten and then to withhold funds from Texas cities and counties—as he did recently to punish Travis County (the county where Austin is located) for its sanctuary policies.  Consider also an Arizona law that empowers the Attorney General to withhold state funds upon finding that a local law conflicts with a state law.  The Arizona Attorney General is also required to investigate local ordinances at the request of any state legislator.  This Arizona statute was an explicit (and punitive) response to local efforts to adopt minimum wage and labor laws.

The reach of punitive state preemption laws is startling.  In Florida, private gun rights groups sued the city of Tallahassee, its mayor, and three city commissioners individually—arguing that their failure to repeal two anti-gun provisions violated a state law authorizing sanctions against local officials for knowing and willful violations of Florida’s firearm preemption statute.  Not content simply to override local gun control ordinances, Florida’s preemption statute authorizes suits against local officials and threatens both civil liability and possible removal from office for violations.  Mississippi, Arizona, Kentucky, and Oklahoma have also adopted firearms preemption statutes that impose liability on local officials.

Gun control is only the tip of the iceberg.  A recent report by the National League of Cities concludes: “consistently state legislators have stricken [sic] down laws passed by city leaders in four crucial areas of local governance: economics, social policy, health and safety.”  Twenty-four states have preempted local minimum wage ordinances; seventeen states override local paid leave laws; another seventeen preempt municipal broadband provision; and thirty-seven preempt local laws regulating ride-sharing.

Though North Carolina has made a big show of “repealing” its preemptive transgender bathroom law, that law is only the most high-profile instance of the kinds of broad state overrides that are increasingly commonplace.  Recall that the original HB2 declared that wage and hours regulation, municipal contracting, employment discrimination, and public accommodations laws are all “properly issue[s] of statewide concern, such that [the state statutes] supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the state.”  North Carolina used the issue of transgender bathrooms not just to regulate bathrooms, but to disable progressive local government laws more generally.  The “repeal” of the bathroom law does not change that.

This attack on cities is part of a larger anti-urban agenda.  Population and growth continues to concentrate in metropolitan areas.  But even as central cities lead an economic resurgence, rural and exurban residents resent city power.  The political and economic gap between cities and their states is widening.  And Trump’s policies may exacerbate these trends.

The response to this challenge must be an invigorated campaign on behalf of city power—an articulation of federalism all-the-way-down.  Cities are currently the most innovative locations for progressive regulatory policy.  But they cannot pursue those policies unless they are freed from state constraints. 

Federalism-based constitutional arguments made in courts against the Trump administration’s coercion of local officials are important, to be sure.  But a national project to revive and reinforce municipal home rule in the states is essential, too.   

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Trump Judges Strike Down Bans on Conversion Therapy

11/25/20  //  In-Depth Analysis

The 11th Circuit held that laws banning conversion therapy — a brutal practice that significantly increases depression and suicide among LGBTQ youth — violate speech rights. The decision signals how Trump-appointed judges could weaponize the First Amendment to roll back civil rights.

Take Care

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School