Constraining Cities

When COVID-19 cases surged last year, cities across the United States reached for familiar public health tools to slow the spread. But increasingly, they found their hands tied.

In numerous cases, state governments stepped in to prevent cities from enacting public health measures. In Florida, the governor threatened stiff fines against cities that imposed vaccine mandates. In Missouri, some cities abandoned contact tracing efforts after the state’s attorney general promised to sue them. Such occurrences during the COVID-19 pandemic were simply the latest battle in a long-running effort in many states to restrict cities’ power—a trend known as preemption.

State preemption of municipal ordinances occurs because, unlike the federal and state governments, cities lack independent power in the U.S. legal system. Although the U.S. Constitution delineates power between the state and federal government, it contains no mention of cities. This omission means that cities are subject almost entirely to state authority.

In practice, many states today have delegated broad governing power to cities, known as “home rule.” But the Supreme Court has repeatedly ruled that whatever powers states grant to cities, they may take away. As political divides between states and cities have widened, states have increasingly blocked cities from controlling their own affairs. These efforts threaten cities’ independence in areas such as zoning, taxes, and even the deployment of municipal broadband networks.

In this week’s Saturday Seminar, scholars explore some of the areas in which state laws preempt local powers and the factors driving these decisions.

• In an article in The Journal of Federalism, Luke Fowler and Stephanie Witt of Boise State University analyzed the frequency of state preemption statutes by subject to determine patterns that explain possible reasons for their adoption. Fowler and Witt identified 17 policy areas especially impacted by state preemption in recent years. They find the states that use preemption the most are conservative states, suggesting political motives behind preemption. They emphasize the importance of federalism scholars shifting their focus from conflicts between the federal and state governments to ones between state and local governments but conclude further research is needed to understand the relationship between these political patterns.
• COVID-19 has impacted everything, and state preemption is no exception, Mark Treskon and Benjamin Docter of the Urban Institute claim in their report. Treskon and Docter compared the relationship between COVID-19 responses during the first four months of the pandemic in states with high preemption. The authors find that states with historically greater levels of preemption enacted fewer local and state-wide policy responses to COVID-19 and vice versa. They conclude that state officials might preempt local authorities to maintain legal control and constrain local policymaking.
• In an article published in The Urban Lawyer, Kenneth Stahl of the Dale E. Fowler School of Law evaluates the ability of states to preempt local land-use regulation to address the housing crisis in some states. Stahl acknowledges that local authorities can better represent the opinions and needs of local communities but argues state preemption offers some overlooked benefits. He explains that states have more resources and are able to develop areas based on local needs such as housing, transit, and grocery stores while balancing the impact on neighboring localities. Stahl cautions against enacting state constitutional provisions guaranteeing local control of land use because state control might be more politically popular, among other reasons. He concludes that local input is desirable, but state preemption of local land-use regulation is needed to address greater concerns.
• In an essay in The Regulatory Review, Ciara Torres-Spelliscy of Stetson University College of Law explains that preemption in Republican-controlled states has stalled local election reform in major democratic cities. Many red states have passed laws that block local ordinances in blue cities, ranging from gun control laws, mask mandates, and plastic bag regulations, according to Torres-Spelliscy. But notably, since the 2020 election, preemption has “reared up” in a trend of red states passing new regressive voting laws, Torres-Spelliscy argues. These laws limit ballot drop boxes, create stricter rules for mail voting, and even gut local campaign finance contribution limits. Torres-Spelliscy concludes that this state preemption of local regulation can “be bad for the health of democracy and the integrity of future elections.”
• In an article in the American Journal of Public Health, Wake Forest University’s Mark Hall, Lilli Mann-Jackson, and Scott Rhodes discuss how state-level preemption of local immigration sanctuary policies can impact public health within communities. According to the authors, a dozen states have passed laws that block local governments from implementing sanctuary policies—policies of noncooperation with federal immigration enforcement. Hall, Mann-Jackson, and Rhodes warn that these preemption statutes limit local municipalities’ ability to address “various determinants of health such as freedom of movement, receipt of a range of social services, and criminal justice.” The authors argue that the impacts of state preemption of sanctuary policies warrant greater attention from the public health community.
• State preemption of local laws has increased rapidly in recent years—including measures that do not just preempt, but punish local governments—according to Richard Briffault of Columbia Law School. In an essay published in the Stanford Law Review, Briffault offers legal arguments against state preemption laws and legal frameworks for local governments seeking to challenge such laws. For example, he argues that state courts could interpret state constitutional provisions that protect free speech and debate to protect local officials from punitive state preemption laws. Briffault concludes that those who oppose local actions should “fight these policies on the merits but not by undermining the capacity for local self-government.”