Cities have become a critical source of innovation across a wide array of policy areas that advance health, inclusion, equitable opportunity, and social justice. In recent years, cities and other local governments have taken the lead in tackling public health challenges, enacting minimum wage and paid sick leave policies, expanding the boundaries of civil rights, responding to emerging environmental threats, and advancing other important reforms. For America to progress, cities, counties, and towns must remain hubs of innovation and solutions testing. But the last seven years has seen an increase in the use of preemption to stop local lawmaking across a broad and growing range of issues.
The increasing use of preemption threatens to perpetuate racial and economic inequality, limit local anti-discrimination efforts, and systematically strip local governments of their power to regulate and set health, safety and economic standards. States now, with growing regularity, overturn the outcomes of municipal decisions and threaten to withhold funds from cities, and punish local officials who defy them.
National polling done for the LSSC shows that voters believe local communities know how to best meet the needs of the people and businesses who live there and that to solve problems, local governments must be able to determine the laws and set standards that reflect the unique views, values and needs of their citizens.
The New Operating Environment
Preemption is not inherently bad or good, nor is its use inherently partisan. It is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption has mainly occurred when a local law was found to be inconsistent with a state law. And historically, preemption has been used to advance well-being and equity. The federal Civil Rights Act of 1964, for example, allowed states and cities to increase protections, but prohibited them from falling below what was required under federal law. But, the present abuse of preemption threatens the fundamental ability of cities to act on the unique views, values and needs of their communities.
- The number of preemption bills expressly prohibiting local laws has increased, and are now being used across a broader range of issues, including areas such as zoning, that used to be reserved for city oversight.
- Preemption bills have become increasing hostile to the authority of cities and counties (known as “home rule”). States are increasingly introducing sweeping “blanket” preemption bills that seek to end local regulation of whole sectors of the government. According to the New York Times, “The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.”
- Preemption is now being used to punish cities by cutting state funds and to threaten local officials with fines, removal from office or jail.
The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy – driven by corporate interests and very often orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization of state lawmakers and lobbyists. Their strategy has succeeded at an alarming rate: