Preemption is Un-American

Preemption is Un-American

What is American is cultural, and culture is a shared thing; it’s not something that divides us.

Businesses of all stripes operate according to standards and norms. They also must obey applicable laws. Things such as customer demands, product and service specifications, as well as public policy, set the rules for business behavior. The proper disposal of hazardous wastes is an example of something governed by public policy. Prior to regulations enacted in the 60s and 70s, hazardous waste could be dumped directly into public waterways.  Without public policy that bans this sort of behavior, our environment would be much worse than it is today.

But things are different than they were fifty years ago. While the progress made through government action in the 60s and 70s was impactful, we have a long way to go. If we do not radically change from “business as usual”, to sustainable business, we’ll not avoid the looming planetary catastrophe. And the role public policy plays in making these changes cannot be over emphasized.

When we look to our nation’s capital, one has to wonder. Our national polity is far too divided to expect much, especially when it comes to the sort of policy necessary to advance sustainable business. While the midterm elections offered a glimmer of hope, both houses of Congress remain divided, with the GOP controlling the House and the Democrats maintaining a razor thin majority in the Senate.  And this may be the least of our problems. According to CBS, 156 Republicans elected to the House, a number representing more than one-third of all Representatives, deny the results of the 2020 Presidential election.  We can’t even agree on facts. What are the chances of changing national public policy to encourage sustainable business?

If we’re to make an impact of any sort, we need to forget about what’s going-on in DC and focus on Michigan, and in particular, what’s going-on at a municipal level. We will only reclaim our democracy by starting small and working within our state and local systems of governance. It’s a case of eating an elephant – no pun intended – one bite at a time.

Here in Michigan, a good place to start is what’s known colloquially as “Ban the Ban”, or more precisely, Michigan Public Act (PA) 389 of 2016, which prohibits Michigan’s lower jurisdictions from enacting a ban of, or placing a fee on the use of “auxiliary containers”. These include plastic bags and anything “…designed for transporting, consuming, or protecting merchandise, food, or beverages from or at a food service or retail facility.”

Ban the Ban is what’s known as preemption, a legal concept wherein the policies of a higher jurisdiction take precedence over those of lower jurisdictions. At the Federal level, preemption applies to things such as environmental policy. So, if the EPA promulgates a regulation, then any regulations at the state level that do not conform to the Federal policy are overridden. The same relation applies between a state government and those at the county and municipal level. Preemption works well in some cases; however, Ban the Ban is not one of them.

There are two principal reasons Ban the Ban is onerous. One has to do with abuse of power and the other has to do with undermining something that stands as a hallmark of American culture: entrepreneurialism.

In 1835, Alexis de Tocqueville published, “Democracy in America”, a two volume work based on his travels in the US over a period of nine months. The work stands as a valuable reference, even today. Its observations of early American life are penetrating and reveal things about our culture that, in this day – one wherein we are, and rightly so, inclined to be critical – tend to be overlooked. While a critical examination of our history, one wherein we wrestle with and reconcile the sins of the past, is vital to moving forward, we ought not forget or disregard what’s good about our culture.

“No sooner do you set foot on American ground”, writes Tocqueville, “than you are stunned by a kind of tumult; a confused clamor is heard on every side, and a thousand simultaneous voices demand the satisfaction of their social wants.” We are a people who want and expect change. Tocqueville’s words convey a sense of urgency and drive for something better. As Americans, we “demand the satisfaction of [our] social wants.”

In describing how democracy manifests itself in our social fabric, and drives our sense of entrepreneurialism, Tocqueville writes of the American: “He takes part in political undertakings which he did not originate, but which give him a taste for undertakings of the kind. New improvements are daily pointed out to him in the common property, and this gives him the desire of improving that property which is his own. He is perhaps neither happier nor better than those who came before him, but is better informed and more active.” Ultimately, Tocqueville concludes, “I have no doubt that the democratic institutions of the United States…are the cause…of the prodigious commercial activity of its inhabitants.”

American culture is wrapped in entrepreneurialism. We hold up as mythological heroes, such as the likes of Musk, Bezos, Ford, Edison and others. We encourage our students to consider becoming entrepreneurs. We place faith in the notion that “prodigious commercial activity” will lead to a better life. We are confident that, left to “market forces”, the answers we need will eventually be found. Yet, we allow the entrepreneurial spirit to be cut-off by implementing laws that preempt good public policy. What would happen if, in recognizing the environmental harm caused by single use plastics, we banned their use? Could we rely on American entrepreneurialism to come-up with alternatives?

As it relates to power, one of Tocqueville’s passages sums things up nicely: “In countries in which riches as well as power are concentrated and retained in the hands of a few, the use of the greater part of this world’s goods belongs to the same number of individuals, who are always the same.” Written nearly 200 years ago, Tocqueville’s words are every bit true today.

In his day, Tocqueville was writing about aristocracies; today, the few are corporate elites, those who command sufficient wealth and power to manipulate public opinion and fund the campaigns of political office holders. When PA 389 passed into law, its main sponsor, who has since term limited-out, was State Sen. Jim Stamas. Stamos’ 2014 campaign for office was heavily financed by Dow Corning. The maleficence goes further, and includes disinformation campaigns by industry groups financed by petrochemical manufacturers.

We must start with what’s in front of us. By overturning PA 389, we would allow human creativity and the spirit of entrepreneurialism to flourish. If Detroit were to ban single use auxiliary containers, what sorts of sustainable businesses might be formed that would provide alternatives?  Could these businesses be social enterprises that provide, distribute and clean reusable auxiliary containers? As social enterprises, these businesses would not only provide meaningful work to the marginalized, but also the wrap-around services they need to be successful, such as day care, educational opportunities and so forth. Could these businesses be financed, with public-private grants, as a means of keeping the cost of these reusable containers competitive with those of the single use variety? With so many philanthropists itching to give away money, couldn’t we find some way to flow capital and put it to work funding businesses that make a triple bottom line impact?

It is an inexcusable failure not to learn from the past. In the 60s and 70s, mass movements resulted in public policy that led to a much cleaner environment. We need to learn from that bit of our history. Today, our democracy has been taken over by corporate elites; the few have control over the many. Nevertheless, the lessons of fifty odd years ago still apply. The difference is one of scope. To reclaim our democracy, and enact public policy for the good of all, we need a hyper-local focus. Small wins will make the difference. Overturning PA 389 will open the door for entrepreneurialism, a cleaner environment and a healthier democracy.

Sign Up For Our Newsletter!

Scroll to Top