Moshe Marvit has an interesting new piece in The Nation about a push to pass local (city- and county-level) right-to-work legislation. Marvit’s piece responds to a Heritage Foundation paper (by James Sherk and Andrew Kloster) that argues in favor of such legislation and to an upcoming ALEC meeting at which such legislation will be discussed. The idea of local right-to-work (RTW) laws raises both legal and policy questions. Marvit’s views on both seem relatively clear: the piece suggests that local RTW laws are impermissible because they are preempted by federal labor law, and that such laws are bad policy, constituting “another front on the war on workers” and amounting to “the equivalent of allowing people to choose to pay or not pay taxes for the services provided by a democratically elected government.”

Marvit deserves great credit (as usual) for bringing an important labor development to light. But I have somewhat different views on both the legal and policy points.

On the law, Marvit states the question correctly. 29 U.S.C. §164 allows “any State or Territory” to have RTW laws, and so the question is whether, by referring only to States and Territories, Congress meant to prohibit cities and counties from enacting RTW legislation. Marvit thinks the answer is clear. Writing about Sherk and Kloster’s argument that §164 allows local RTW laws, Marvit comments: “If this sounds like a bizarre and over-broad reading of the law, that’s because it almost certainly is.”

Sherk and Kloster may well be wrong, but it’s not obvious that they are. That’s because there are important occasions on which the term “state” has been construed also to mean “city” (a point that Sherk and Kloster themselves make). This is true, for example, of the Fourteenth Amendment which dictates that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Although limited by its terms to “state[s],” the Amendment also applies to cities. In other contexts, the opposite is true: thus, with respect to 11th Amendment immunity, state does not mean city. And, similarly, federal statutes other than the NLRA – including ERISA, for example – explicitly define “state” to mean “a state [or] any political subdivision thereof.” Given this, the NLRA’s failure to specify that “any State” includes cities suggests that §164 may not, in fact, authorize cities to enact RTW legislation.

On the law, then, my point is not that Sherk and Kloster are necessarily right. Rather, the point is merely that this is not an entirely easy question. Indeed, the leading casebook on Local Government Law (Frug, Ford, and Barron) offers the following useful summary: “The Supreme Court’s federalism doctrine reveals the difficulty of classifying cities for legal purposes. Sometimes the Court equates them with states and sometimes it does not.”

On the policy question, I don’t necessarily disagree with Marvit, but I do look at this issue through a broader lens. If the issue is limited to whether RTW laws are good labor policy or not, then I agree with Marvit: RTW is bad labor policy, for reasons Catherine Fisk and I have explained at some length. But there’s another angle from which to view the question of local RTW laws, and that is whether it makes sense for federal labor law to continue preempting state and local legislation in general. On this more general – and in my view more important – question, I do not believe that labor law should remain an exclusively federal question and I am in favor of much greater latitude for cities and states.

Why? In brief, the pathologies of the federal labor law regime are deep enough that it now makes sense to open up the regulation of union organizing, collective bargaining, and labor-management relations to experimentation at the state and local level. Experimentation will take many different forms. Progressive local jurisdictions might require things like card check recognition, employer neutrality, access rights for organizers, prohibitions on anti-union consultants, speech rights for employees, and more. Indeed, unions have been pushing for this kind of local legislation for years now, and despite the broad preemption regime that currently controls, unions have made some headway here. On the other hand, some state and local jurisdictions would move in the opposite direction, doing things like banning project labor agreements and enacting RTW legislation.

State and local experimentation is one of several approaches we ought to endorse as we rethink and try to reinvent American labor law. But loosening the reigns of preemption to enable experimentation means accepting experiments with all kinds of political valences. From my perspective, and given where labor law is today, the benefits of such an approach likely outweigh the costs.