HB2 Freeze Is Better Than Notice

Republican friend with government experience writes:
“Please check WRAL website.  Governor had a news conference and announced his new proposal.
I think he made a colossal error in having a press conference and NOT informing Berger and Moore before he went public.  Makes it look like a publicity stunt, rather than a serious effort to reach a conclusion.
By the way, not sure it would have convinced Moore and Berger but gives them an excuse for criticizing the effort by Cooper as not serious.
Too much politics on both sides….”
On the politics, my friend makes a sincere point.
On the substance, the Governor’s giving 30-day notice just sets up the rules for any number of predictable fights.  The advantage of instead freezing pre-Charlotte-ordinance law as OK (and everything else as not OK) is that it stops the fighting.  And a series of fights is not what we need.

Here is a trial balloon that’s bound to evolve:
Brainstorming HB2 Repeal
Pat Oglesby 919 967 1982 lawyerpo@yahoo.com 13 February 2017 349pm
Repeal HB2 in toto.  For bathrooms, revert, as Governor Martin suggests, to “pre-existing law and practice.”  Specifically, validate the most favorable pre-Charlotte non-discrimination ordinances (NDOs), and anything in the future that goes just that far, and no further.
Charlotte repealed its ordinance in good faith.  To condone reinstatement of Charlotte’s ordinance unravels the deal.
The GOP welshing on full HB2 repeal was understandable.  Full repeal would have left them open to some future Charlotte-like NDO, and provoked a new battle.  If Ds insist on what Charlotte abandoned in the spirit of compromise, this bathroom non-problem will haunt us.
Before Charlotte, some localities reportedly had NDOs that did not prompt a GOP backlash.  Some in the GOP say those localities did not have the right to enact those NDOs.  (North Carolina uses “Dillon’s Rule,” which states that “if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred.” http://www.nlc.org/local-government-authority.)
The GOP claim, that those NDOs were invalid, apparently never got tested in court.  Maybe the Rs weren’t so sure that the courts would agree that the localities had never been given the authority to regulate public accommodations and such. Or they didn’t want the hassle of court.
A middle ground would let those pre-Charlotte NDOs – and similar, future NDOs – operate.
Details of 3-part fix:
1.  HB2 is repealed in toto.
2.  Except as provided in 3., State law pre-empts the field – localities cannot act.
3.  Notwithstanding any other provision of law, nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with
(a) any ordinance or local measure that was in effect on both March 23, 2016, and the date of enactment of this Act, or
(b) any subsequently enacted ordinance or local measure substantially identical to an ordinance or local measure described in (a).

Author: patoglesby

From 1982 to 1990, I worked in tax policy for Committees of the United States Congress. In recent years, I was Adjunct Lecturer at UNC-Chapel Hill's Business School and then Adjunct Professor at its Law School.

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