Saturday, May 14, 2016

HB2 and Big Government Claims

I've noted some misunderstanding in the debate over House Bill 2 (HB2) about how government in North Carolina works.

The North Carolina General Assembly approved HB2 after the city of Charlotte passed an ordinance that allowed individuals to choose public accommodations citywide that corresponded to their gender identity rather than their biological sex. HB2 preempted the Charlotte ordinance, prohibited local governments from enacting such ordinances, and set a statewide non-discrimination policy for the first time, omitting LGBT as protected classes.
"§ 143-422.2. Legislative declaration. It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees."
HB2 does not affect private businesses, which are still free to set their own restroom policies, and includes a provision that allows public agencies to supply special accommodations, such as single-occupancy restrooms, to people who are uncomfortable using the facility that corresponds to their biological sex, as would be the case with transgender people.

The omission of LGBT protection in the law is in line with federal standards. But this omission triggered an organized partisan political agitation effort in a swing state during an election year that has been joined by the local and national news media, entertainment and sports celebrities, businesses, and even the Obama Administration.

Some say that HB2 is an example of the kind of big government overreach that conservatives decry and that this action does not accord with the conservative political philosophy of small government, nor does it accord with the conservative objection to the encroachment of the federal government into state, local or private affairs, or its heavy-handed interference in the economy, healthcare, and social relations.

The suggestion that HB2 is an example of big government is false. In fact, the case is quite the opposite. These claims also betrays some confusion about how federalism works in America. The individual is, or should be, the supreme authority and locus of political power. Individuals created the states, and states, in turn, created both the federal government and local governments (cities and counties).

But back to a proper understanding of the relationship between the state legislature and local government. As stated by the North Carolina League of Municipalities, "North Carolina municipalities - cities, towns, and villages - operate under charters granted by the General Assembly and have powers and authorities granted to them by state statutes and the state constitution. In this state, municipalities do not have home rule, which means that the state legislature must grant the powers and authority to municipalities and authorize them to perform certain functions."

As stated by the University of North Carolina’s non-partisan School of Government, local governments in North Carolina are creatures of the state legislature. That is, the North Carolina constitution grants the General Assembly broad authority to establish and deal with local governments essentially whenever and however it sees fit. The North Carolina Constitution states in Article VII, Section 1 that, “the General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by [the]Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.”

Thus, if the General Assembly wants to create a city, county, or other local governmental unit, it is free to do so. If it wishes to abolish a local government, or to merge it with another, or to impose particular obligations on it, it has almost unlimited power to do as it chooses. North Carolina is not a “home rule” state, as that term is commonly understood. Its local governments exist by legislative benevolence, not by constitutional mandate.

Under North Carolina’s system, the extent of the power of local governing boards to adopt rules to govern the city’s or county’s affairs or the life of the community depends on what the General Assembly authorizes. As creatures of the state legislature, local governments may act only if they have legislative permission to do so.

North Carolina is a Dillon's Rule state. Cities only have the authority granted to them by the state legislature. There is even some question as to whether North Carolina is even a purely Dillon's Rule state:

Is North Carolina a Dillon’s Rule State? by Frayda Bluestein

Frayda Bluestein offers the pros and cons of Home Rule here:

Do North Carolina Local Governments Need Home Rule? by Frayda S. Bluestein

A city's delegated rule-making authority is contained in N.C.G.S. 160A.
"§ 160A-4. Broad construction. It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect: Provided, that the exercise of such additional or supplementary powers shall not be contrary to State or federal law or to the public policy of this State."

Sometimes the state legislature's grant of authority to a city contains vague or open-ended permission and cities abuse that fact by pushing beyond the intent of the law prompting the General Assembly to step in and clarify the law. The Charlotte ordinance was such a case.

One other example was the clarification concerning the regulation of aesthetics and design features for single-family homes: The General Assembly grants these local governments limited authority to enact and implement local zoning ordinances for specific purposes. The governing statute (N.C.G.S. 160A-381) says that “a zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land.” But some of our city and county governments in North Carolina have broadly interpreted the law so they can regulate aesthetic elements not at all associated with safety and construction standards or the general character of a neighborhood.

The City of Charlotte passed a local ordinance that, if it had been allowed to take effect, would have applied to all public accommodation in the city, privately-owned and publicly-owned, and that was so broadly written that it would have allowed deviant heterosexual men uncontestable legal access to women's facilities.

HB2 prevented all of that and it prevented other cities from repeating Charlotte's folly. HB2 reduces the size and scope of government by preempting the illegal Charlotte ordinance that would have forced private businesses and non-profits to eliminate sex-segregated public accommodations.


ACLU Lawsuit

Department of Justice Demand Letter to NC Governor

Governor McCrory Lawsuit

Department of Justice Lawsuit

NC General Assembly Lawsuit

University of NC Student’s and Parent's Lawsuit

Grimm 'amicus' brief (joined by NC Governor McCrory)

U.S. House of Representatives v Burwell (Obamacare)

Jeffreys, Sheila. "The Politics of the Toilet: A Feminist Response to the Campaign to ‘degender’ a Women's Space." Women's Studies International Forum 45 (2014) 42–51. June 7, 2014.