With the federal government currently being picked apart and sold to the highest bidder, many will look to local governments to fill the resulting void. Calls will (and should) be made to strengthen local public health departments, create sanctuary communities to protect immigrants, provide food and energy assistance to low-income residents, and much else. However, in attempting to meet these demands, local officials face a significant constraint: the increasing use of state and federal preemption. To confront this challenge, I argue in this brief post, local elected officials and municipal attorneys need to adopt a movement-oriented approach to governing and municipal law.
The Challenge of Preemption
To appreciate the threat of preemption, consider the fate of the abolitionist movement to defund the police in the wake of the 2020 uprisings. Across the country, in cities such as Madison WI, Denver, CO, and Oakland, CA, local elected leaders translated constituent demands into actual budgetary policy. In Austin, TX for example, the City Council unanimously voted in August 2020 to divest from their police budget and reallocate those funds towards violence prevention and other community safety programs. Austin City Council Member Greg Casar, one of the main leaders behind the divestment vote, stated that the vote was only possible “because city leaders listened, we took democracy really seriously and listened.”
However, less than a year later, state legislators responded by blocking the municipality’s power to control its own budget. Signed into law by Governor Greg Abbott in June 2021, HB1900 imposed penalties on local municipalities (of greater than 250,000 residents) who voted to reduce their police budgets, including a prohibition on increasing property taxes and city-owned utility rates—both important sources of revenue for most municipalities. The bill also allows the state to appropriate a portion of a municipality’s sales tax revenue to cover expenses for the Texas Department of Public Safety.
Similar preemption measures were adopted by state legislatures in Georgia, Florida, and Wisconsin. In the case of Wisconsin, the preemption measure against “defunding municipalities” was initially vetoed by Democratic Governor Tony Evers—who argued that “local governments and local elected officials are well-positioned to make informed decisions about what is best for their communities and how to meet the needs of the people they serve and represent.” However, just two years later, Governor Evers signed a shared revenue law that requires Wisconsin municipalities with more than 20,000 residents to certify that staff and budgets levels are maintained for police and fire departments. If the staffing and funding levels aren’t met, municipalities will not receive shared revenue from the state, effectively prohibiting the ability for local elected officials to decide their own budgetary allocations for their police and fire departments.
Preemption measures against municipal governments have also targeted movements to raise the minimum wage, improve public health, and enact sanctuary policies to protect immigrants. Indeed, state preemption efforts have become so numerous and expansive that movement organizers and others have described the tactic of state governments preempting in response to local government action as “abusive state preemption,” or “aggressive preemption/post-emption.” Such descriptions, while not inaccurate, risk obscuring the fact that state preemption of local municipalities has long been utilized by right-wing and neoliberal legislators to control, oppress, and subjugate local communities fighting to enact racial and economic justice policies. Put simply, the rampant wielding of state preemption power during times of political radicalization is a feature, not a bug, of the American system, and one with which local officials must learn to contend.
Lessons from Movement Lawyers
While there are many tactics that movement organizers have utilized to fight back against state preemption, one significant obstacle has largely escaped both scholarly and public attention: the role that municipal attorneys and local elected officials play in acquiescing to state preemption. I say this not only as an abolitionist organizer and movement lawyer, but also as a former local elected official. As an abolitionist organizer, I have always believed that the legality of an issue should not define the boundaries of our movement demands, nor define the limits of our political imagination. But during my time in office, I quickly came to realize that municipal attorneys are one of the key roadblocks to enacting transformative legislation. Such legislation pushes the boundaries of what is possible under the law, while also expanding the limits of what can be possible if we are brave enough to fight for it.
Often, when movement demands make their way to a municipal board table, municipal attorneys are consulted to interpret the legality of a proposed legislation. And most local elected officials simply take the attorney’s interpretation of the law as the definite word on the matter. This response is understandable, as most local elected officials are part-time un- or under-paid community members without their own paid staff to help them interpret or understand a municipal attorney’s analysis of the law. Under these conditions, when a municipal attorney opines that a policy measure is preempted, there is often little to no pushback. One outcome when local elected officials take their attorney’s opinion at face value is a co-opting and watering down the movement demands, and the enacting of “feel-good” legislation that does little to transform our community members lives. An even worse outcome is when local elected officials abandon the transformative legislation entirely.
It is, however, a local elected official’s responsibility to demand and enact the most transformative legislation possible—not to limit their political imagination by what a municipal attorney deems is “legal.” Municipal attorneys, for their part, should take a lesson from movement lawyers who have long understood that their role in movements is to define not what is possible, but to advise on what may happen should a movement take a particular action. It is then left up to movement leaders to determine the demands and actions they want to take. It is important to remember that municipal attorneys are not elected officials—they do not get a vote on whether a policy should be enacted—that decision is up to the community and the local elected official that is cogoverning with community.
Adopting a movement-centric ethos as a local elected official means challenging what is deemed “legal” or preempted by municipal attorneys and creating a popular inside-outside movement that pushes forward a transformational vision and policies for our communities. When local elected officials hear that an issue is likely preempted by the state, their first response shouldn’t be to pull a Hakeem Jeffries and say, “What leverage do we have?” Instead, local elected leaders should enlist the power of the community to demand that local municipalities enact the most transformative legislation that is politically possible—even if its legality may later be challenged by the state.
Take, for example, the recent victory in New Orleans where community members organized to add an amendment to the New Orleans City Charter that included fair wages, comprehensive health care coverage, and paid leave as fundamental rights. While the amendment itself didn’t change wage or employment policy, given state preemption on those issues, the “Workers Bill of Rights” served as an organizing vehicle to mobilize business owners, city council and community members to support the amendment. While other tactics like legal action are vital in fighting back against preemption, the New Orleans approach is a long-term movement strategy approach that raises local awareness about state preemption. The fight against state preemption happens in small steps. But every single step is critical in fighting for local elected officials’ ability to govern their city as their community demands them.
Adopting this ethos is especially important in our current political conjuncture, where a fascist President is demanding that state governors bow down and kiss the ring, or risk losing all federal funding. Many state governors will, and already have, started complying to the king’s orders, leaving local elected officials as the last line of defense in a quickly crumbling democracy. It is in moments like this, by refusing to comply in advance, by refusing to limit the boundaries of our political imaginations, and by challenging the limits of what municipal attorneys claim is possible, where local elected officials and community members can recapture the power of our local governments to radically transform our political, social, and economic conditions.
