Preemption and the Power of “States’ Rights”

When Louisiana’s 2019 legislative session convenes Monday, April 8th, it’s unlikely we’ll hear the governor or lawmakers say the words “state preemption.” Yet legislators and state officials, and corporate interest groups like the Louisiana Association for Business and Industry (LABI) and the American Legislative Exchance Council (ALEC), will be debating the benefits and drawbacks of preemption. It is the premise that prompted changes to the Industrial Tax Exemption Program (ITEP) and continues to make them controversial. It is also a component of the bill that could alter the homestead exemption, and a major hurdle in efforts to raise the minimum wage.

“Preemption” is the concept that laws made at one level of government supercede or overrule laws enacted by another level of government. It’s the hierarchy of who rules who.

Starting with the federal level, the “Supremacy Clause” of the U.S. Constitution (Article VI, Paragraph 2) states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land.”

But then there’s the Tenth Amendment to the Constitution – part of the Bill of Rights. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The U.S. Constitution specifically designates that the federal government, through acts of Congress, has the power to coin money, regulate commerce, raise and maintain military forces, and declare war. Additionally, with the consent of the U.S. Senate, the U.S. President has the power to make treaties with foreign governments.

Presumably, then, the remainder of governmental powers belong to the states, “or to the people,” according to the Tenth Amendment. But many of our country’s internal struggles have been manifestations of states pushing back against federal encroachment (or perceived encroachment) on those constitutionally undelegated political powers.

“States’ Rights,” right?

A rallying cry of the secessionists, “states’ rights” continues to be used as a seeming non-racist explanation for the Civil War. In 1860, the recently formed Republican Party was socially liberal, advocating for the abolition of slavery. Democrats, the dominant party of the South, were that era’s “conservatives”, wanting to preserve and conserve their predominately agrarian economic and social system, which happened to be financially dependent on retaining slavery.

“States’ rights” remained the rallying cry of the post-Reconstruction white Southern Democrats, as they instituted laws to segregate former slaves and their descendants, and restrict their rights. For nearly a century, they fought to keep those laws in place. Following World War II, in 1948, the national Democratic Party embraced integration as part of their platform, prompting a breakaway “States’ Rights Democratic Party,” also known as the “Dixiecrats.” In the aftermath of U.S. Supreme Court-ordered school desegregation in the mid-1950s, a more extremist wing formed the “National States’ Rights Party.” Openly affiliated with the Ku Klux Klan, party officials and members were, over the next two decades, indicted, tried, and convicted for church bombings across the deep South.

The Democratic Party as a whole, however, generally embraced progressivist ideas and issues from the mid-20th century on. At the same time, the Republican Party became more focused on conservatism, advocating for smaller government in reaction to the post-Depression and WWII expansion of the federal government under Democrat Franklin Delano Roosevelt. And currently, it’s Republicans that most frequently toss “states’ rights” claims into national policy debates, as part of the GOP’s proponency of reducing the size of government.

Dillon, Cooley, Casey, and Huey

If the hierarchy of governmental powers were completely logical, based on the wording of the Tenth Amendment, it would follow that powers not delegated to each state in its individual constitution would then be reserved to local governmental divisions, and to the people. Yet conflicting theories of local governance, brought to the fore in the tumultuous years immediately following the Civil War, have – over the past century-and-a-half – kept tensions high in the tug-of-war over state-versus-local political control of governmental functions. The two major opposing viewpoints are known as Dillon’s Rule and the Cooley Doctrine.

In 1868, Iowa’s state Supreme Court Chief Justice was John F. Dillon. He issued a pair of rulings stating that since the state grants local governments their existence, local governments can only act in ways the state specifically permits them to do.

Three years later, in 1871, a Michigan Supreme Court Justice, Thomas Cooley, ruled very much differently. He stated that “local government is a matter of absolute right, and the state cannot take that right away.” Cooley’s ruling morphed into the doctrine of “Home Rule” – hence “home rule charters” that give cities and parishes in Louisiana (and cities and counties in other states) certain autonomy.

Back to Dillon, though. In 1869, President Ulysses S. Grant appointed him to the federal bench, to the 8th U.S. Circuit Court of Appeals. While there, Dillon wrote the book Municipal Corporations. Published in 1872, it further expounded on his theory that local government cannot act without the express permission of the state. In the 1890s, Dillon served as president of the American Bar Association and taught at Yale Law School.

In 1907, the U.S. Supreme Court officially endorsed “Dillon’s Rule” in the decision handed down in Hunter v. Pittsburgh. Quoting frequently from Dillon’s book, the unanimous decision ruled that “(s)tates have supreme sovereignty over their local governments.”

This will be important to remember in the upcoming legislative session, and during the tidal waves of campaign propaganda this fall.

For the past several years, we’ve heard Louisiana Association of Business and Industry President Stephen Waguespack frequently encourage the idea of abandoning “the Huey Long model of government,” which he has defined as “an all-powerful state government that taxes, spends, and plays a prominent role in our lives and businesses.” Last year, in one of his many opinion columns, Waguespack expanded his definition, writing, “The model of government created by Huey Long – which relies on excessive political power and the heavy hand of state government far too much – must be holistically transitioned to a system that embraces the principle of local control and taxation closest to the people.”

Great rhetoric, but misplaced blame. For while Huey Long embraced and implemented this form of state government, he did not “create” it. The state governmental model Waguespack and others ascribe to Huey Long actually belongs to Dillon’s Rule, which predates Louisiana’s Huey Long administration by more than 60 years. You could say Dillon “preempted” Huey.

Now I know you’re wondering, when and where does Casey come in? It’s today’s trivia. John Dillon had a sister and she had children and grandchildren, including a grandson named Charles Dillon Stengel. He was better known by his nickname: “Casey” Stengel.

Coming next: State preemption and the battle to establish a Louisiana minimum wage.