Kriston Capps takes on the question of DC Statehood and state pre-emption:

In Alabama, Governor Robert Bentley signed a bill into law blocking cities from passing local minimum-wage ordinances the day after the Birmingham City Council voted to raise its minimum wage. In Texas, the Denton City Council was forced to repeal its ban on fracking after the state issued a law prohibiting cities from passing fracking bans. Tennessee is mulling preemptive anti-transgender legislation; Mississippi has already gone there.

Paid sick leave, smoking bans, environmental controls, refugee relocation, transgender rights, plastic-bag fees, the minimum wage: All of these issues matter to voters. Residents make decisions about these matters by voting on them. But then lawmakers that residents usually did not elect make decisions about their lives, over their heads. That’s preemption—and that’s the way many things work in the District, except that instead of state legislators preempting city councilors, our laws are preempted by Utah Representative Jason Chaffetz.

Capps is essentially setting up a systems question. Why should states be allowed to pre-empt local legislation on the minimum wage, LGBTQ protections, and so on. These are all very interesting questions, though it’s quite apparent from his piece that Capps takes his preferred policy conclusions and works backwards.

Let’s take the minimum wage, for example. The question should not be as narrow as “Should Alabama pre-empt Birmingham’s desire for a higher minimum wage?” but rather “Who should set the minimum wage: local government, state government, or federal? To some degree, it’s going to be a combination of them and that’s fine. I further have no real problem with the status quo where federal standards, then state standards, then local standards are set and each must be higher than the other. In fact, that’s my preference. However, there is no systems or process reason why this must be the case. More to the point, if it is legitimate for California to set Bakersfield’s minimum wage higher than it otherwise would, it’s equally legitimate for Alabama to tell Birmingham to set its minimum wage lower than it otherwise would.

Everything else is just a preference for a higher minimum wage or a lower one. Which is to say, it’s a policy preference and not a process or a systems one.

As I say, my own preference is that for a ratchet-up option. Though the purist in me would love for all minimum wage issues to be handled at the state or local level, I’m not quite that pure. There ought to be a floor, at least for the states (pulling Puerto Rico on board may have been a mistake). However, the floor being the floor, it should be made with Mississippi in mind. If we’re only going to allow a ratchet-up, then it only makes sense to start from a low point. California and New York didn’t do that, making my response to their decisions entirely different from that of Seattle and San Francisco.

The other issues he presents are more complicated. LGBTQ rights are, or ought to be, more universal and not so much a response to local economic needs. And while patchwork laws on employment make a fair amount of sense, it makes less so when it comes to which bathroom which person can use (or which hotel which person is allowed to stay at, and so on). So from a process standpoint, it makes a lot more sense for it to be established at the state (or federal) level. Which I sort of hate, because man was I thrilled when Salt Lake County passed its anti-discrimination laws for gay folks. But from a process standpoint, I wouldn’t really be able to object to the state pre-empting that law. I’d just really hate it from a policy standpoint.

As far as Capps’ DC question goes, while I don’t support statehood I do support DC having all of the self-governing authority that the states have.


Category: Statehouse

About the Author

Will Truman (trumwill) is a southern transplant in the mountain east with an IT background who bides his time taking care of their daughter while his wife brings home the bacon. You will probably be relieved to know that he does not generally refer to himself in the third-person except when he's writing short bios on his web page.

4 Responses to Mandatory Minimums

  1. Abel Keogh says:

    Congress can’t grant DC statehood. It would take a constitutional amendment for DC to become a state. Article I, Section 8 would need to be amended and the 23rd Amendment would have to be repealed in order for that to happen.

    A better solution, one that Congress could do quickly, would be to redraw the boundaries of Washington DC so that most of it’s residents become part of Maryland, Virginia or both leaving the White House, Congress, the Supreme Court, and the government offices that surround that area as part of DC.

    • trumwill says:

      Yeah, I favor Retrocession into Maryland.

      In the meantime, while Congress probably can’t give DC national representation (in the Senate, at least) , they can let it run itself.

  2. Brandon Berg says:

    Sounds about right. Notably, he doesn’t mention even one of the many examples of preemption creating the kind of policy a stereotypical Atlantic writer might prefer. Like, say, Obergefell. Or Roe v Wade. Or federal or state minimum wages. That’s the kind of thing I would mention if I were trying to demonstrate a principled opposition to preemption. If you only have a problem with preemption when the policies getting preempted are ones you like, then you don’t have a problem with preemption.

    • trumwill says:

      Agree on that. If you’re making an argument about process, it’s pretty critical that you include examples that involve disfavored outcomes. Otherwise, it comes across as not being about process.

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