The New York Times Thinks Preempting Local Control Is Bad—When Republicans Do It

The New York Times editorial board is furious that Republicans in state capitols are undermining democracy. This time they're doing it by passing laws that preempt policies approved by Democratic-controlled city halls.

The Texas Legislature, it notes, approved a bill this session that would preempt localities from adopting regulations in areas already governed by the state codes for agriculture, natural resources, labor, finance, insurance, and occupations. If Gov. Greg Abbott signs the bill into law, localities could only regulate in those areas if they're explicitly authorized to do so by state statute.

The Times editorial board claims this will preempt city regulations on subjects as mundane as overgrown lots and as serious as civil rights protections.

The cited source on the overgrown lots claim is the Texas Municipal League, a taxpayer-funded lobbying group controlled by local governments and dedicated to preserving local control. Business groups that support the bill argue that numerous parts of state law make clear that localities will retain their authority to regulate overgrown lawns, employment discrimination, and more.

No matter. The Times contends that Texas Republicans' regulatory preemption, like so many other conservative efforts to centralize decision making in state legislatures, is "silencing the will of millions of voters."

One might note that state legislators are likewise elected. In that context, the "will of millions of voters" in Democratic-controlled Texas cities isn't necessarily silenced so much as it is being overridden by the will of millions of more voters who elected a Republican-controlled Legislature.

Obviously, there are winners and losers in the fight between state lawmakers and city council members, but the will of the voters as such is generally unaffected.

Centralization isn't Republicans' only sin, says the Times. They're also hypocrites.

"Conservatives used to champion ideas like local autonomy," the board writes. "What's now become clear is that Republicans dislike local control if they are not in charge of it."

That's surely true. But if opportunistic support for the sanctity of local control is the issue, perhaps the editorial board should engage in a little self-reflection.

Just last year, the editorial board argued that the U.S. Congress, let alone state legislatures, should pass a law raising the minimum legal age to buy a semi-automatic weapon. Doing so would "silence the will" of not just millions of voters, but tens of millions of voters, who want to live in states and communities without that infringement on their gun rights.

For whatever reason, concerns about local control didn't dominate the Times' thinking there.

Texas' preemption bill, it notes, would allow citizens to sue local governments for trying to enforce local laws that are preempted by the state. To put it another way, the Texas bill cuts qualified immunity protections for local officials—something the Times editorial board has editorialized in favor of in other instances.

Indeed, the Times editorial board doesn't even seem to be working with a consistent definition of state preemption.

For instance, it claims that only five states, including New York, allow local governments to adopt firearms regulations. This is only true in the sense that localities in those five states can pass laws that are more restrictive than what the state has established.  The will of voters in communities that would want looser gun laws is still being silenced.

New York's assault weapons ban presumably "silences the will" of conservative upstate voters who'd be more inclined to allow more types of weapons to be possessed and sold in their communities. According to the Times, so long as localities retain their authority to pass even stricter regulations on guns in keeping with prevailing liberal opinion, local democracy is as safe and efficacious as it needs to be.

In a few brief paragraphs at the end of its editorial, the Times does agree that some local rules should give way to state preemption and mandates.

"There are cases where pre-emption laws are in the public interest: for example, when it becomes necessary for states to prevent their cities from creating or perpetuating injustices, to prevent discrimination and help citizens achieve fundamental rights like equal access to housing, employment and the ballot," the board writes.

One could easily rework the above sentence to say something like, "There are cases where preemption laws are in the public interest: For example, when it becomes necessary for states to prevent violation of Second Amendment rights, to prevent overly burdensome taxation, and to protect fundamental rights like the right to earn a living."

Are those rights really so much less important that they can't be protected by state legislatures? The Times' answer is yes, because protecting those rights would interfere with liberal policy preferences.

When we talk about the division of powers between state and local governments, policy preferences really are the whole kettle of fish.

Liberals and conservatives are both eager to centralize power in state legislatures and governor's mansions (to say nothing of Congress and the White House) when they run those institutions. They're both quick to stick up for local control when they're out of power.

Arguments predicated on the inherent competence of local governments over a particular issue area or their right to represent the will of local people are almost always pre-textual. The only real defenders of local control as a principle seem to be state leagues of cities (who are themselves funded by local governments and controlled by local elected officials).

Whether something should be a matter of local policy or state policy almost always boils down to a question of what you think good policy should be.

The Times article specifically defends the effort by New York Gov. Kathy Hochul to override local zoning restrictions in favor of more housing production as an example of preemption that is in the public interest.

Editorial board member Mara Gay has written a number of articles about how anti-growth residents (and the local governments they control) are making housing more expensive and less accessible for everyone, and, therefore, land use powers should be evolved to the state government.

These are arguments in favor of zoning reform first, and centralization as a means of achieving it second. I doubt either Gay or the editorial board would defend Gov. Ron DeSantis' intervention to stop local zoning reforms in Gainesville, Florida, aimed at allowing more dense housing in single-family-only zones.

To be clear, this isn't to defend every state preemption measure criticized by the Times editorial. Indeed, libertarians shouldn't be too attached to one level of government. We're interested in individual control (i.e. liberty), not local control, state preemption, or anything else.

(This is separate from the division of powers between the states and the federal government, which is defined in the Constitution. If you think having constitutionally limited government is good, you should want that balance protected, even if it doesn't always give you the policies you want.)

Sometimes liberty is best protected by empowering local governments to act as a bulwark against the interfering tentacles of state officials. Sometimes state officials are the ones defending liberty from local despots passing income taxes, plastic bag bans, and rent control laws.

Sometimes preemption policies are a mixed bag: overriding some unjust local rules but imposing others at the state level. Figuring out when it makes sense to centralize power or devolve it can require careful thought.

But doing that careful thinking doesn't imply that local governments have some inherent right to set policy because they're "closest to the people" or whatever else.

Arguments about local democracy vs. state preemption are always about policy preferences and political expediency. Let's not pretend otherwise.