If you don’t know what preemption is, you should. If you live in a city that’s more progressive than the state it’s in, chances are good that preemption is coming to oppress you.
Preemption is when a higher government authority (usually a state) removes the right of a lower government authority (a city) to pass laws on certain matters. It violates the longstanding conservative principle of home rule–the belief that matters that can be left to local governance should be left to local governance. But we don’t live in an era of conservative principles anymore, so home rule has been cast in the crematorium of Republican ideals that don’t serve megadonors along with deficit reduction.
Preemption and Corporate Profits
Preemption is typically how a pernicious industry ensures it doesn’t face irritating obstacles to profits. The failure of Big Tobacco taught other industries that preemption is an important part of the death industry playbook –as communities around the country passed tobacco ordinances and people started to prefer their public places with less lung cancer, anti-tobacco regulations spread. Other industries saw that they should block this kind of pesky community improvement from the get-go to ensure maximum profits–it’s a lot easier to pay for a few cheap-date state legislators than to battle every community that tries to put its residents’ lives above your business. So the pesticide industry and the fossil fuel industry have preempted local ordinances impacting their profits in states around the country. Now restaurant owners’ associations are working to preempt local living wage laws, and construction organizations are preempting some local fire code requirements. In seven states, the junk food industry has preempted local governments from requiring food sellers to post calorie counts or other nutrition information. Thirteen states now preempt local governments from regulating factory farms.
But the king of preemption is the National Rifle Association. The NRA has been quietly working since the 1990s to get state legislatures to screw their residents through preemption laws that typically 1) nullify existing local gun ordinances, 2) prevent the passage of new local gun ordinances, and 3) give the NRA special standing to sue local governments that attempt to crack down on firearm deaths. They have been wildly successful at this–currently 43 states have passed broad firearm preemption laws. The remaining seven states include six flaming blue states (all of which see low per capita gun death rates) and little red Nebraska. We will soon write more about the ongoing attempt by the NRA to screw Nebraska with firearm preemption, but for now we want to stick with the concept of preemption.
Preemption and Social Justice
If it weren’t bad enough that big nasty industries were erasing local democracy by wiping out communities’ rights to regulate their own health and safety, Republican culture warriors are also using preemption to oppress city-dwellers on social justice issues. In many states around the country, Republican lawmakers have proposed bathroom bills that preempt local ordinances preventing LGBT discrimination–in North Carolina, a contentious and partially repealed bathroom bill not only preempted an existing ordinance in Charlotte but also tacked on preemption of local minimum wage laws just for the morally bankrupt hell of it. In Arkansas and Tennessee, local governments are banned by state law from protecting classes of people from discrimination beyond what the state provides.
Preemption laws are double whammies: they not only actively oppress entire classes of people or jeopardize public health, they also wipe out a basic structure of American democracy, the right of the people to local governance. In Nebraska, we are waging a battle over the NRA’s preemption bill (a piece on this is forthcoming in Seeing Red), and we are also seeing preemption pop up in other contexts, such as an effort last year to preempt local regulation of short-term rentals like AirBnB. Nebraska voters should be on the lookout for any talk by conservative legislators about wiping out local democratic control.