“If Americans don’t start paying closer attention to what’s happening in statehouses across the country, the republic may never recover.”
- New York Times, March 19, 2019
The Increased Use and Abuse of Preemption
Preemption occurs when a higher level of government (such as a state legislature) restricts or withdraws the authority of a lower level of government (such as a city council) to act on a particular issue. Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity.
In the past, states have established minimum standards, “floors” for local government to build on – to tailor locally or make stronger. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law.
Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”
This is not what we are seeing now. What we are seeing now is preemption that prohibits local governments from doing more than what was proscribed by the state and, in many cases, from regulating at all. “New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.”
Where States Are Interfering
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 often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up of corporate lobbyists and a quarter of all state lawmakers that writes and distributes “cut and paste” model bills. Their strategy has succeeded at an alarming rate.
From 2011 to 2019, the quantity and reach of new preemption laws have skyrocketed. As of August 1, 2019:
25 states preempt local minimum wage laws – North Dakota was added, but Colorado was removed from the list in 2019
23 states ban local paid sick days laws – including Maine’s law passed this year that does ensure paid leave across the state, but also preempts localities passing their own policies (2019)
43 states limit local authority to regulate guns or ammunition
15 states ban local plastic bag bans – adding in Tennessee (2019) and Pennsylvania (2019)
· At least 11 states preempt local sanctuary policies – adding in Arkansas (2019)
At least ten states preempt local regulation of e-cigarettes – adding in Arkansas (2019), Texas (2019), and Utah (2019)
At least nine states preempt local fair, predictable scheduling laws
Five states have preempted local fair hiring, “Ban the Box” laws – Indiana, Michigan, Mississippi, New Jersey, Tennessee
Four states now ban soda taxes – Arizona, California, Michigan, Washington
The State is Now Interfering in More Policy Areas:
LABOR STANDARDS
Minimum wage, paid sick time, wage theft, local hire, pensions, fair scheduling
CIVIL RIGHTS
Anti-discrimination, sanctuary cities, immigration
PUBLIC HEALTH AND SAFETY LAWS
Gun safety, e-cigarettes sales, food labeling, sugar-sweetened beverages
TECHNOLOGY
Broadband, 5G, self-driving vehicles
ENVIRONMENTAL PROTECTION
Factory farming, plastic bags, Styrofoam, energy benchmarking
LOCAL ZONING
Fracking, inclusionary zoning, rent control
LOCAL TAXES
Tax and expenditure limitations