Tag Archives: pre-emption

The Hidden Hand

When I hear the term “hidden hand,”  I immediately think of Adam Smith. But a couple of weeks ago, I came across a very different definition of that term–one that resonated with me.

Published by a think-tank called “Support Democracy,”the article addressed the growing problem of pre-emption, which it dubbed “the hidden hand.” In Indiana, we’ve had that problem as long as I can remember; it’s what I fulminate about when I decry local government’s lack of home rule.

Many of America’s cities, towns, and counties have less power than they did at the start of the year to protect the health and safety of their communities or to respond to the unique needs and values of their residents. That’s because between January and June 2019, state legislatures across the nation continued a troubling trend of passing more laws forbidding or “preempting” local control over a large and growing set of public health, economic, environmental, and social justice policy solutions. This legislative session, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.

Some states this session went further, with bills aimed at abolishing core powers long held by cities, including their ability to negotiate and set employment terms with their own contractors, enact and implement local land use laws, and control their own budgets and finances.

Here in Indiana, local jurisdictions have long been under the thumb of state lawmakers. The same legislators who bitch and moan about “unfunded mandates” imposed on state governments by Washington blithely operate on the assumption that they know better than the folks running city and county jurisdictions how those officials should do their jobs.

Are there issues that require federal mandates? Sure. Are there issues that ought to be handled consistently statewide? Of course. But the policy debate should center on what those issues are–and it rarely if ever does. Instead, we have the Indiana General Assembly deciding what vehicles Indianapolis can include in our locally-funded mass transit plans (no light rail for us–why, no one can explain).

It’s bad enough that a former Governor whose political savvy outstripped his devotion to rational policymaking (yes, Mitch, I’m looking at you) shoehorned a tax cap into the state constitution. That certainly made him popular. It has also destroyed the ability of local governments to provide appropriate levels of basic services. (Not to mention that provisions of this sort don’t belong in constitutions, which are by definition frameworks prescribing how issues like taxation are to be dealt with.)

State and local governments desperately need to revisit the allocation of power between them. In states like Indiana, state-level lawmakers need to allow local governments to make the decisions that are properly local.

As the report at the link explains,

Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law. Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”This is not what we are seeing now.

“New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.” Some of this is propelled by a disdain for local lawmaking and urban lawmakers seen as too liberal, intent on “oppressing” the free market and “trampling” on individual liberty…. Another primary driver of new preemption is the opportunity conservatives now have to deliver on a long-promised anti-regulatory agenda – an agenda that disproportionately and negatively affects women, people of color and low income communities. These new preemption laws are being used to prohibit local regulations without adopting new state standards in their place, effectively preventing any regulation or policy remedy at all.The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up by lobbyists and a quarter of all state lawmakers that writes and distributes model bills.

In my most recent book (which I shamefully keep hyping) I make a case for revisiting federalism, and ensuring that control of issues is lodged with the appropriate level of government.

I doubt I’ll live long enough to see that happen…..