The Frontlines of America's Culture Wars: Fighting Back against Abusive State Preemption
This post was written by Lori Riverstone, an Associate Professor of Politics and Government at Illinois State University. She graduated with a Masters of Public Administration and a Doctorate in Political Science from the University of Tennessee-Knoxville. Her teaching centers on subnational politics and policy, environmental policy, and public administration. The current focus of her research includes the intergovernmental arrangement, state preemption, and how, despite their legal subordination in the federal system, localities strive to meet their needs.
This year the Local Solutions Support Center will feature in-depth blog features authored by the members of our 2023 Research Cohort. Each member of our Research Cohort will explore a different topic and its connection to preemption.
Throughout the early 2010s, advocates, researchers, and local leaders grew increasingly alarmed by the escalating use of abusive state preemption by conservative leaders, often backed by industry groups, seeking to thwart local progressive policies. These state leaders claimed preemption was necessary to preserve the economic or regulatory health of their states, often citing the need for policy uniformity across jurisdictions.¹ However, it quickly became clear that rather than being helpful to state economies, many preemption bills were actually detrimental,² leading observers to question not only the economic argument for preemption, but the real motives behind the growing movement.
Since COVID, the cultural or ideological motives for many abusive state preemption laws have moved out from the shadowy realm of “we’re just protecting the economic well-being of the state” to stand defiantly at the center of the larger “culture wars in the states.”³ State and local economic conditions continue as part of the preemption narrative, but the social agenda that began to assert itself in the early 2010s is no longer hidden or defended in any way. The resulting conservative political environment is often, in a word, shameless.
Despite ongoing and expanding preemption activity, there is good news on several fronts: Citizens are recognizing the effects of preemption and other forms of state- and interest-driven control over their lives and communities,⁴ and they are fighting back in both traditional and non-traditional ways. Also, some courts are reigning in state overreach by overturning all or part of state laws. Behind many of these and other efforts are advocacy groups whose efforts continue to make a difference. The remainder of this article spotlights some recent developments in preemption and resistance activity.
First, while earlier targets for preemption continue, conservative leaders have extended their efforts beyond local economic policies and regulation to include open attacks on personal rights and freedoms. As part of the nation’s “culture wars,” state preemption has been used to determine contraceptive options and abortion availability, classroom content, undermine vaccination standards, prevent gender-affirming treatments and counseling, limit voter access and elections administration, prevent or overturn ballot initiatives, prohibit transgender child and adult participation in school sports, and to override local anti-discrimination protections, among others. Thus, state leaders – while claiming to be defenders of rights and freedoms – are unilaterally making childbearing and rearing decisions, decisions about who can vote and how, as well as who is worthy of protections against discrimination, what we are allowed to learn and read, how and how well we provide for our families, and much more. This is a departure from the past 100+ years wherein many of these policy areas were viewed as within the purview of local concern and under the decision-making authority of local leaders whose voters could, and often did, replace them when dissatisfied with the local policy direction.
As advocates who are working to strengthen home rule authority remind us,⁵ when localities possess responsibility and authority to address local needs and citizen desires, city and county leaders can craft policy solutions that are tailored to meet unique local conditions. State preemption has no capacity for such nuance. As a result, problems go unresolved. Conditions deteriorate. Such is the case in Michigan where, after years of declining “wage standards and quality of life in communities,”⁶ the effects of state preemption are undeniable and resistance to state overreach is growing. As a result, Progress Michigan, supportive state leaders, citizens, and local leaders are gaining ground in their efforts to repeal preemption laws from the mid-2010s that banned local control over project labor agreements and labor and workforce policies. Three legislators have introduced bills “to repeal local preemption and the ban on project labor agreements” with hopes of passage by the end of the year. While Republican support is not expected, the level of leadership, citizen, and group engagement signals a commitment to sustain the effort until repeal is secured. As Berrien County Commissioner, Chokwe Pitchford put it, “We don’t need people in the Legislature always telling us exactly where and when money should be spent. We know our communities better than you do. We hit the damn potholes every day.”⁷
“State leaders – while claiming to be defenders of rights and freedoms – are unilaterally making childbearing and rearing decisions, decisions about who can vote and how, as well as who is worthy of protections against discrimination, what we are allowed to learn and read, how and how well we provide for our families, and much more. ”
Some courts are also showing their support for local decision-making, as well. Recent victories in Pennsylvania (fracking), Missouri (minimum wage), Texas (paid sick leave), among others, signal a willingness among some courts to defend localities against harmful preemption laws. This summer, California’s Third District Court of Appeal affirmed the unconstitutionality of withholding a charter city’s sales tax revenue upon enacting a sugary drink tax, a measure that local governments and advocates support as a means of both promoting public health and “countering the beverage industry’s unjust marketing and sales practices.”⁸
Texas’s “death star” bill of 2023 (HB 2127) “prohibits cities from enforcing or creating regulations that are stronger than the state’s in broad policy areas including labor, finance, agriculture, occupations, property and natural resources.”⁹ As is often the case with abusive state preemption, the bill was backed by a business lobby – the National Federation of Independent Businesses. In addition to limiting local authority, the law exposes localities to litigation which can be brought by businesses or individuals “if they feel they’ve been harmed by a local ordinance that they argue falls under the state’s preemption categories.”¹⁰ According to the judge in the case, “The Governor’s and Legislature’s ongoing war on such home-rule cities hurts the State and its economy, discourages new transplants from other states, and thwarts the will of Texas voters who endowed these cities in the Texas Constitution with full rights to self-government and local innovation. This self-defeating war on cities needs to end.”¹¹ Although the law was determined to be unconstitutional by a district court judge on August 30, it nonetheless went into effect on September 1, leaving the cities to fight challenges on a case-by-case basis. A similar bill was signed into law in Florida on June 29, 2023.¹²
In the realm of resistance, arguably, some of the most heartening stories are the product of citizen activism, as is the case with citizen responses to book bans. More than 3,500 instances of school book bans occurred in the U.S. from January to December 2022, mostly due to content related to gender, sexuality, and race.¹³ Florida’s 2022 law, HB 1467, which allows, among other measures, for any parent to challenge books in school libraries, is seen as an extension of the state’s previous “Don’t Say Gay” laws. Tallies vary, but the Miami News Times reports that over 350 books were banned from Florida school districts between July 2022 and April 2023.¹⁴ In response, citizens, teachers, and advocacy groups are organizing, redirecting students to other book sources and offering alternate access points as, for example, “Banned Book Nooks” in private book stores, pop-ups in various locations, banned-book giveaways, and banned book Little Free Libraries.¹⁵ Similar acts of “creative resistance” are happening across the nation¹⁶ and there may be useful lessons to glean from these efforts. For a start, determining what makes citizen-led book ban resistance successful may inform advocacy strategies in other policy areas.
While conservatives and industry groups continue to use preemption to thwart progressive policies, it is reassuring to remember that they don’t always get their way. There is resistance out there, and it is building in the courts, communities, among citizens. People are getting it. Advocates and local leaders across the nation are leading the charge in preemption repeal, preventing new bills from passing, and finding ways to do good work even in the most hostile political environments.