The Tennessee legislature recently expelled two Democratic representatives who had participated in a peaceful but (deliberately) disruptive protest on the House floor, which their Republican colleagues considered indecorous. Both of the expelled legislators, Justin Jones from Nashville and Justin Pearson from Memphis, are young Black men. They were protesting legislative inaction in the wake of (yet another) mass shooting, this time at a Nashville school, which cost the lives of three nine-year-old children and three adults. The shooter also died.
One might have thought Tennessee legislators would consider cleaning the blood of a murdered nine-year-old child off the floor of her elementary school the very apex of indecorous behavior. In order to avoid a repetition of this indecorum, one might have thought Tennessee legislators would address themselves urgently to the problem of gun control. Instead, they expelled the two young Black legislators who protested the inaction.
Many have pointed out that Tennessee Republicans opted, by a single vote, not to expel the White female legislator who protested alongside her Black male colleagues. (No Democrats voted for expulsion.) Others have written about the far more serious indiscretions that Tennessee legislators have left unpunished. But while this comparative mistreatment is noteworthy, none of it should come as a surprise once we know the larger pattern at work in Tennessee.
When one legislative body tells another what it can and cannot do, whether explicitly or implicitly, we say the former has preempted the latter. When a state legislature preempts county or city government, we call that state preemption. Because it displaces local preferences, preemption is inherently anti-democratic and inimical to the (conservative) principle of local self-determination. It should therefore be deployed only when strictly necessary. The federal government, for instance, prevents the states from letting tobacco companies evade or minimize warning labels on cigarette packages. But nothing prevents the states from demanding more protective labels, since that advances the national policy served by the federal rule.
But when preemption is deployed merely to impose distant political preferences, that is an abuse of power. And the Republican-dominated Tennessee legislature is an acknowledged master at telling Democratic cities in the state what they can (but mostly can’t) do. Consider the minimum wage. In 2012, 200 fast-food workers in New York City walked off the job to demand a $15/hour minimum wage. The walk-out ignited a mass movement for a living wage, and dozens of cities and states responded to these demands by raising the minimum wage within their jurisdiction.
Cities in Tennessee certainly might’ve wanted to join their ranks. Tennessee not only has no minimum wage, it has no state income tax. Instead, it relies heavily on one of the highest sales tax rates in the country. The sales tax is notoriously regressive since it forces the poor to pay a larger share of their income than the wealthy. And the wealthy do very well indeed in the Volunteer State. The 1% have an effective tax rate of only 2.8% in Tennessee, making it friendlier to the highest earners than all but five states.
And while the wealthy are protected by the Tennessee tax structure, the poor are not. More Tennessee residents earn the federal minimum wage than almost any state in the country, Memphis has one of the highest poverty rates in the nation, especially for children, and Nashville is fast becoming one of the most expensive cities in the south. Politicians might rationally address this reality by raising the minimum wage, since research has shown that bumping up the bottom wage redounds broadly to the benefit of a city’s poorest residents. It raises take-home pay, reduces food insecurity, lowers drop-out rates for the most impoverished teens, and lowers rates of infant mortality.
This likely explains why politicians and activists in Memphis and Nashville have long supported an increase in the minimum wage. The Tennessee legislature, however, does not. In 2013, the Tennessee legislature responded to the prior year’s protests by prohibiting any county or city in the state from setting a minimum wage higher than the federal minimum, which has been $7.25/hour since 2009. The same law also barred all local legislation that would have obligated employers to provide paid medical leave. Yet as one group of scholars observed, “paid family leave is essential … to promote infant health outcomes [and] longer durations of paid family leave is associated with significantly lower rates of preterm births, low birth-weight infants, congenital anomalies, and overall infant mortality.”
Preemption of the minimum wage and paid medical leave was just the beginning. In 2016, the Tennessee governor signed into law a bill that preempted local governments from protecting workers in the gig economy. Tennessee law bans municipalities from forcing companies like Uber and Lyft to treat their drivers as employees, which would have provided the drivers with additional rights and benefits. In 2017, Tennessee passed a law that preempted local governments from requiring employers to give advance notice of work schedules or to pay extra for requiring workers to be “on call” for shifts. In 2021, the legislature preempted Nashville legislation that would have increased health and safety oversight on construction projects funded by the city.
And this is just a partial list. In 2011, Tennessee became the first state to prohibit local governments from extending anti-discrimination protections beyond those already recognized by state law. The year before that, it preempted local governments from offering a municipal broadband service. In 2019, the legislature prohibited local governments from regulating or taxing the use of plastic containers.
To be sure, some of these policies are contentious and good-faith arguments can be made against them. But that does not cut in favor of preemption; it cuts in favor of elections. The residents of Nashville or Memphis, like anyone else, can weigh the evidence, consider the arguments, and decide for themselves through their elected officials. That’s what democracy means. Yet Tennessee preempts with regularity. As one group of researchers found, Tennessee preempts local law more often than any other state in the country.
If anything, the process of silencing Democratic voices is accelerating. In 2022, the Tennessee legislature split the single congressional district that served Davidson County, the home of Nashville, into three separate districts, each of which joined a small part of Nashville with a swath of outlying suburban and rural areas. This of course dramatically diluted the minority and progressive votes in Nashville and converted a reliable Democratic seat into equally reliable Republican seats. Later that year, the 40-member Nashville Metropolitan Council voted against hosting the 2024 Republican National Convention in the city, which certainly seems the city’s prerogative. In retaliation, the Tennessee legislature voted last month to cut the council in half, a move that was recently blocked by a panel of state court judges.
In our hyper-partisan age, it was perhaps inevitable that Tennessee Republicans would also take aim at markers of progressive identity. In March, Republican Governor Bill Lee signed a bill that banned gender-affirming health care for transgender minors and another that made Tennessee the first state in the country to ban certain drag performances. In appreciation, white supremacists celebrated in Nashville by draping an enormous sign over a bridge that featured a swastika and a shout-out to the governor for “tirelessly working to fight trannies and fags,” and adding, “we must secure a future for white children.”
And of course, Tennessee has long preempted local governments from enacting any form of gun control, which was the basis for the protest that led to Jones and Pearson being expelled. The current statutory language, passed in 2014 and subject to only a few narrow exceptions, is exceedingly broad:
the general assembly preempts the whole field of the regulation of firearms, ammunition, or components of firearms or ammunition, or combinations thereof including, but not limited to, the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage, and transportation thereof, to the exclusion of all county, city, town, municipality, or metropolitan government law, ordinances, resolutions, enactments or regulation. No county, city, town, municipality, or metropolitan government nor any local agency, department, or official shall occupy any part of the field regulation of firearms, ammunition or components of firearms or ammunition, or combinations thereof.
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If all this were reversed and a Democratic state legislature silenced a Republican city time and again, Republicans would be up in arms. Yet for many years, Tennessee Republican legislators have deprived the residents of Democratic-led cities of their voice. The expulsion of Jones and Pearson is just the latest iteration of this anti-democratic impulse. Though both legislators have been reinstated by their respective municipalities, the Republican determination to silence Democrats remains, and so long as it does, Republicans should expect their decorum to be breached.
