The Reconstruction-Era Legal Theory Preventing Cities and Towns from Responding to the Covid-19 Crisis – Radical times demand a radical re-conception of local politics.

States have severe­ly ham­pered cities’ capac­i­ty to respond to the demands of the nov­el coro­n­avirus and social move­ments alike. Sev­er­al have banned paid sick leave ordi­nances and refused to per­mit local evic­tion mora­to­ri­ums, while 19hold a check on munic­i­pal­i­ties’ pow­er to expand broad­band net­works for those who need it. Ari­zona, Geor­gia, Flori­da, Mis­sis­sip­pi, South Car­oli­na, Texas, Ten­nessee and West Vir­ginia, among oth­ers, have under­mined city-wide efforts to impose stricter quar­an­tine mea­sures. As many as 48 states lim­it the fis­cal author­i­ty of local gov­ern­ments, often pre­vent­ing them from fill­ing the voids left by fed­er­al and state bud­get cuts.

In a June report pub­lished by the Amer­i­can Con­sti­tu­tion Soci­ety titled ​State Pre­emp­tion and Local Respons­es in the Pan­dem­ic,” authors Nestor David­son and Kim Had­dow found that states sab­o­tage any kind of holis­tic approach to Covid-19. Two weeks pri­or, New York Uni­ver­si­ty pro­fes­sors Jen­nifer Pomer­anz and Diana Sil­ver released a report of their own reveal­ing how cor­po­rate inter­ests and state leg­is­la­tors have been engaged in a con­cert­ed, often secret strat­e­gy to con­sol­i­date pow­er in state leg­is­la­tures. States, they write, lim­it ​the capac­i­ties of local gov­ern­ments to pro­tect their res­i­dents from pub­lic health harms while min­i­miz­ing the nation’s abil­i­ty to learn from local pol­i­cy exper­i­ments aimed at improv­ing pub­lic health.” We have also seen cor­po­ra­tions direct­ly over­turn local law­mak­ers, as I detailed in anoth­er June report titled ​Cor­po­ra­tions Are Suing Cities Across the USA.”

With Black Lives Mat­ter protests and the coro­n­avirus plac­ing a spot­light on munic­i­pal gov­ern­ments and their bud­gets, we are learn­ing what polit­i­cal activists have long known to be true: Real polit­i­cal change hap­pens from the bot­tom up. Before the fed­er­al gov­ern­ment divests from the mil­i­tary indus­tri­al com­plex, cities must defund their police depart­ments, rein­vest­ing their resources in long-neglect­ed social services.

But adopt­ing these kinds of urgent, rad­i­cal mea­sures won’t be easy. State ​pre­emp­tion” laws, writ­ten in con­junc­tion with cor­po­rate lob­bies and some­times police unions, have lim­it­ed the author­i­ty of local com­mu­ni­ties to enact min­i­mum wage increas­es, pub­lic edu­ca­tion reform, civ­il rights expan­sions and sus­tain­able poli­cies that would forge a more just and equi­table soci­ety. The answer, our polit­i­cal moment would sug­gest, is the eman­ci­pa­tion of munic­i­pal government.

The right has had a vir­tu­al monop­oly on ​local con­trol” in the pub­lic imag­i­na­tion. Iron­i­cal­ly, it is Repub­li­cans who have made sub­vert­ing munic­i­pal­i­ties part of a long-term strat­e­gy to pre­serve their grip on pow­er that includes anti-demo­c­ra­t­ic ger­ry­man­der­ing and vot­er sup­pres­sion. This is a real­i­ty the Amer­i­can left has failed to grap­ple with. Pre­dom­i­nate­ly white labor move­ments, and left­ist caus­es more broad­ly, have long ignored Black com­mu­ni­ties’ demands for con­trol over their own edu­ca­tion and the ways that racial inte­gra­tion has been used to quash the eco­nom­ic and polit­i­cal auton­o­my of com­mu­ni­ties of color.

For decades, there has exist­ed a false dichoto­my in which struc­tur­al cri­tiques of cen­tral­ized con­trol are dis­missed as lib­er­tar­i­an and calls for fed­er­al and state over­sight over local gov­ern­ments are decried as author­i­tar­i­an. The real­i­ty of Amer­i­can pol­i­tics demands a more nuanced analy­sis. States have lim­it­ed the polit­i­cal pow­er of activists, all but extin­guish­ing the social­ist poten­tial of local gov­ern­ments. Cor­po­rate-inter­est groups like the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), mean­while, have lob­bied for Sanc­tu­ary City Pre­emp­tion” laws that force local offi­cials to col­lab­o­rate with U.S. Immi­gra­tion and Cus­toms Enforce­ment, as well as oth­ers that pro­hib­it local gov­ern­ments from rais­ing liv­ing stan­dards and pro­tect­ing ecosys­tems. At the same time, con­ser­v­a­tives have used the courts to sys­tem­at­i­cal­ly restrict locals’ pow­er to gov­ern these cor­po­rate interests.

These tac­tics can be traced to a coun­ter­rev­o­lu­tion­ary legal doc­trine used to clamp down on redis­trib­u­tive poli­cies advanced dur­ing Recon­struc­tion. ALEC has tak­en it upon itself to explic­it­ly defend what is known as Dillon’s Rule—a the­o­ry that holds there is no pow­er local gov­ern­ments pos­sess that a state leg­is­la­ture can­not super­sede. Today, the rule pro­vides the legal frame­work for pre­emp­tion and the ​emer­gency man­age­ment” of pre­dom­i­nant­ly Black and Lati­no school dis­tricts (and cities). In the late 19th cen­tu­ry, it was used to repress munic­i­pal activism and incip­i­ent social­ism. Dur­ing the same legal era, cor­po­ra­tions were arbi­trar­i­ly grant­ed ​per­son­hood” by the U.S. Supreme Court, which helped to ensure that new­ly enfran­chised Black Amer­i­cans and immi­grant pop­u­la­tions would not be able to pass laws that might infringe on white cor­po­rate power.

To rel­e­gate this Jim Crow-era the­o­ry to the dust­bin of his­to­ry, we must first rec­og­nize that pre­emp­tion itself is val­ue-neu­tral. Pre­emp­tion is often used for good, like when the fed­er­al gov­ern­ment over­turns dis­crim­i­na­to­ry laws or when a state stops a city from total­ly destroy­ing a local ecosys­tem. In the South and else­where, how­ev­er, pre­dom­i­nant­ly con­ser­v­a­tive white politi­cians have been able to use pre­emp­tion to impose their will on com­mu­ni­ties of col­or and to ban more pro­tec­tive local law­mak­ing. And so as long as states can uni­lat­er­al­ly
erase or ban gen­uine expres­sions of local eco­nom­ic, social, racial, and envi­ron­men­tal jus­tice, we must con­sid­er the cur­rent par­a­digm fun­da­men­tal­ly undemocratic.

In the Mil­bank Quar­ter­ly, Derek Carr, Sab­ri­na Adler and Ben­jamin Winig of Change­Lab Solu­tions, and Jen­nifer Karas Mon­tez of Syra­cuse Uni­ver­si­ty reimag­ine the use of pre­emp­tion. ​An equi­ty-first pre­emp­tion frame­work,” they write, ​can facil­i­tate case-by-case assess­ments of whether pre­emp­tion is like­ly to wors­en inequities or whether it is an appro­pri­ate response to address exist­ing inequities.” Under their pro­pos­al, states would be able to pre­empt forms of local dis­crim­i­na­tion, per­haps with more author­i­ty than they cur­rent­ly have under exist­ing civ­il rights law, but they would not be allowed use pre­emp­tion to sub­vert min­i­mum wage laws, the expan­sion of work­er ben­e­fits or any oth­er mea­sures that might decrease inequality.

The authors set forth their vision as follows:

An equi­ty-first frame­work also would alter how we dis­tin­guish var­i­ous forms of pre­emp­tion. Under exist­ing frame­works, pre­emp­tion laws are clas­si­fied pri­mar­i­ly on the basis of their mechan­i­cal oper­a­tion – that is, whether the law estab­lish­es a reg­u­la­to­ry floor that allows low­er-lev­el gov­ern­ments to impose fur­ther reg­u­la­tions, a reg­u­la­to­ry ceil­ing that pro­hibits any addi­tion­al reg­u­la­tion, or a reg­u­la­to­ry vac­u­um in which a high­er-lev­el gov­ern­ment does not estab­lish any reg­u­la­tions of its own but still pro­hibits low­er-lev­el gov­ern­ments from enact­ing any reg­u­la­tions relat­ed to the giv­en sub­ject. An equi­ty-first frame­work, in con­trast, would clas­si­fy pre­emp­tion based on its antic­i­pat­ed impact on health and health equity.

Beyond pro­pos­als like these, my col­leagues at the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) have been work­ing with a num­ber of local groups chal­leng­ing the pre­em­i­nence of Dillon’s Rule and the anti-demo­c­ra­t­ic forces it enables. CELDF has helped draft and defend the first Rights of Nature laws in the Unit­ed States with the aim of simul­ta­ne­ous­ly sub­or­di­nat­ing con­sti­tu­tion­al pro­tec­tions for cor­po­ra­tions. It has also put forth a new legal doc­trine that rede­fines state law as a ​floor” to which local com­mu­ni­ties can add civ­il, human and eco­log­i­cal rights pro­tec­tions. In the CELDF pro­pos­al, the author­i­ty of local gov­ern­ments would trump cor­po­ra­tions’ claimed protections.

One amend­ment under con­sid­er­a­tion in the Penn­syl­va­nia leg­is­la­ture, intro­duced in response to sup­pres­sion efforts by the fos­sil fuel indus­try, has earned the endorse­ment of anti-pipeline groups and a grow­ing net­work of munic­i­pal gov­ern­ments, along with local and state offi­cials who would great­ly ben­e­fit from a new sta­tus quo.

This is about more than win­ning greater pro­tec­tions for local activists; it’s about trans­form­ing our under­stand­ing of gov­ern­ment — both how it works and who it serves. In Mis­souri, for exam­ple, cities with pre­dom­i­nant­ly Black pop­u­la­tions like Kansas City and St. Louis are not even allowed to vote on rais­ing the min­i­mum wage. (The for­mer is policed by a gov­er­nor-con­trolled force, while else­where in Mis­souri, the leg­is­la­ture and the agri­cul­ture indus­try have stripped rur­al com­mu­ni­ties’ author­i­ty to over­see cor­po­rate farm­ing.) Whether its rent con­trol, police account­abil­i­ty, paid sick-leave expan­sions or pro­tec­tions for non-cit­i­zens, social move­ments are demand­ing local pow­er, now. And as the cli­mate cri­sis inten­si­fies, the need to lib­er­ate our munic­i­pal­i­ties only grows more urgent.

Re-imag­in­ing an activism that address­es this cri­sis and oth­ers demands recon­cep­tu­al­iz­ing the very pur­pose of the law, but that can­not mean empow­er­ing munic­i­pal gov­ern­ments alone. This would raise very real risks of reac­tionary local con­trol. Instead, we must make pre­serv­ing civ­il, human and eco­log­i­cal rights the law’s top pri­or­i­ty while simul­ta­ne­ous­ly free­ing cities to build upon those pro­tec­tions. And while the Mil­bank Quar­ter­ly mod­el aims to reduce inequal­i­ties, it does not go so far as to explic­it­ly reori­ent the law away from prop­er­ty rights toward safe­guard­ing those of liv­ing peo­ple and the nat­ur­al world.

For­mer Demo­c­ra­t­ic Speak­er of the House Tip O’Neil famous­ly said that all pol­i­tics is local. Only by think­ing in big, struc­tur­al terms can we begin to treat them accordingly.

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Simon Davis-Cohen | Radio Free (2021-09-24T06:15:41+00:00) » The Reconstruction-Era Legal Theory Preventing Cities and Towns from Responding to the Covid-19 Crisis – Radical times demand a radical re-conception of local politics.. Retrieved from https://www.radiofree.org/2020/09/01/the-reconstruction-era-legal-theory-preventing-cities-and-towns-from-responding-to-the-covid-19-crisis-radical-times-demand-a-radical-re-conception-of-local-politics/.
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