States Are Thwarting Cities’ Attempts to Govern Themselves

In 2015, the City of Berkeley, California, passed an ordinance requiring cellphone shops to inform customers that carrying a cellphone in certain ways can expose them to radio-frequency radiation that exceeds Federal Communications Commission (FCC) standards.

Retailers would be forced to put up a poster that reads:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

Can the people of a city require corporations to provide information about risks associated with their products?

It’s a fight that has played out in many industries, most famously with the tobacco industry, and more recently with simple genetically engineered food labels.

When faced with laws to force the labeling of genetically modified organisms (GMOs), the agribusiness industry successfully argued in federal court that such laws violate corporations’ “negative free speech” rights. Corporations, the industry argued, are “persons,” and as such, they, like all other persons, have a right not to speak — and therefore cannot be forced to speak about the contents of their products. That argument was used to challenge a Vermont law mandating the labeling of GMOs in 2016. The argument failed, because it was eventually ruled the proposed Vermont label was purely factual and did not contain any language about possible negative effects of GMOs. The Vermont law has since gone into effect, but the underlining constraint on law-making endures: labels cannot contain anything “controversial.”

Similarly, after Berkeley passed its “Right-to-Know” law in 2015, the Cellular Telephone Industries Association, which represents cellular service providers, filed a lawsuit challenging the “compelled disclosure provision” of the municipal law, according to court records. Berkeley’s law, the lawsuit argued, forces retailers to speak, and therefore is a violation of corporations’ First Amendment rights.

Central to the Industries Association’s argument was that the local law conflicted with federal law and was therefore preempted.

The GMO labeling law eventually won in court, because it did not include any information about possible risks of GMO foods, something the federal government had not made a decision on. Nonetheless, it was swiftly nullified. Twenty-six days after the Vermont law did get approved by the courts, it was preempted by the Obama administration.

On July 2, the United States Court of Appeals for the Ninth Circuit found that the Berkeley law strengthens specific, existing FCC consumer protections enacted by the federal government. So it was not preempted by the federal government, but rather seen as an effort by a local government to help enforce a federal regulation. The court sided with the local law, saying that, “Far from conflicting with federal law and policy, the Berkeley ordinance complemented and enforced it.”

Important Case for Advocates of “Floor” Preemption

This ruling may be welcome news for advocates of “floor” preemption, wherein federal and state regulations set minimum protections for citizens, allowing local governments to enhance those protections. Unfortunately, many federal regulations and state regulations impose “ceiling” preemption over municipalities. In other words, local governments are generally forbidden to enact stricter regulations than those adopted by state legislatures or Congress.

In some instances, such as the Berkeley case, federal law allows local and state representatives to enhance but not degrade federally mandated protections.

States, as sovereign governments, generally enjoy the autonomy to increase or enforce federal protections. For example, states can raise the federal minimum wage, but they are not allowed to lower it. But when Congress regulates interstate commerce, it regularly overrules state legislatures.

Unfortunately, when it comes to state’s relationship to municipalities, ceiling regulations, not floor protections, are imposed by the state on local governments.

Municipalities: Sidelined by Federalism

States can uniformly and unilaterally define their regulations as the legal ceiling that local governments are not allowed to exceed. We see this across the nation, where state legislatures have passed bills to remove all sorts of powers from local governments, including their ability to raise the minimum wage, heighten civil liberties protections for non-citizens, strengthen environmental standards, protect workers on the job, regulate land use and much more.

Such restrictions stifle local democracy. For example, using the powers of ceiling preemption, governments like Alabama and Missouri have effectively removed key self-government powers from the states’ predominantly Black cities. In Michigan, the legislature, using the same legal doctrine, revoked the authority of predominantly Black cities like Detroit and Flint to enact and enforce local policies. The effects have been devastating. Flint’s water was contaminated, Detroit’s public unions were undermined, and wages in majority-Black cities have continued to stagnate. The stripping of local democracy in these cases has had tangible material impacts on millions of lives.

It’s not just cities of color that are impacted. All municipalities are routinely hamstrung in this way. Recently, the Missouri Legislature prohibited rural communities from passing any law impacting corporate agriculture, despite a long tradition of municipal lawmaking to protect against the harms of industrial agriculture. In Ohio, following enactment of the Lake Erie Bill of Rights by the citizens of Toledo, the legislature slipped a prohibition against enforcement of rights for ecosystems into the budget bill. Blocking local democracy has become an uncontrollable habit for state lawmakers.

While many will welcome the federal court’s decision to uphold the Berkeley cellphone radiation disclosure law, the court’s decision should not be mistaken for judicial deference to the right of local self-government. Not until ceiling preemption is abandoned to the junk heap of bad law will municipalities become real tools for communities of people to participate in self-governance, free from federal and state ceiling preemptions that benefit the corporate few at the expense of the common good.