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States Pre-empt Cities Almost to the Point of Irrelevance

Over the past decade, states have preempted cities across a broad range of policy areas, including policing and health. If anything, the pandemic has only accelerated the trend.

aerial view of Austin, Texas
Austin, Texas, has redirected policing funds to pay for housing the homeless and the Governor isn't happy. (Roschetzky/Shutterstock)
Over the past couple of weeks, the city of Austin has purchased two hotels, pursuing a new tactic to address its serious homelessness problem. Much of the money is coming out of the police budget. Last year, the council approved shifting millions from policing to pay for supportive housing programs, as a public safety priority. 

Texas Gov. Greg Abbott has been a persistent critic of Austin’s decision to cut its police budget and divert funds for other uses. “Defunding police is reckless and endangers lives,” Abbott tweeted last month. “We will defund cities that tried to defund police.” 

Last year, the governor floated the idea of having the state take over policing for the center of Austin.  He called on all Texas candidates last November to support a pledge against police funding cuts.  Now, he supports legislation that would block cities from cutting their police budgets.

Other states, including Arizona, Indiana and Louisiana, are also considering legislation that would block localities from reducing police or public safety budgets. “We have to provide some certainty to people that this isn’t going to happen,” says Indiana state Sen. Mike Bohacek. “Law enforcement is a service that is necessary and needed, and residents need assurances it’s not going to be used as a political tool.”

Policing isn’t the only area where legislators are weighing new demands on localities. Education and health are hot topics as well. States such as Florida, Iowa and Tennessee are threatening to withhold funds from school districts that aren’t offering in-person instruction. “We will not let any local government shut down schools,” Florida Gov. Ron DeSantis said last year. “We’re not going to let any local governments do these things.”

A 2018 survey found that 70 percent of local health officials and 60 percent of mayors had abandoned or delayed policies due to the threat of state preemption. The coronavirus pandemic has only accelerated health preemption efforts. Bills have been introduced in roughly half the states to put new limits on public health authority, including their ability to shut businesses or impose mask mandates.

"Local government is a creation of the state," says Missouri Sen. Andrew Koenig, who is sponsoring health preemption legislation. "When it comes to shutting down businesses and taking people's rights away, the state government has a right to step in."

Legislators like Koenig are responding to current conditions, but in a sense, their actions are nothing new. Over the past decade, state lawmakers have preempted local governments in a broad array of policy areas, preventing minimum wage increases, gun control laws, plastic bag bans and ordinances to protect gay and transgender rights. Although such high-profile battles have drawn the most attention, preemption has become habitual in some states, with legislators looking to micromanage areas such as parking regulation and building design requirements. 

“Communities have a right and a responsibility to govern in a way that’s most helpful to their constituents, but states are stepping in and preempting on a regular basis,” says Julia Wolfe, an analyst with the Economic Policy Institute, a progressive think tank, and coauthor of a study looking at preemption in the South

The efforts to block localities from cutting public safety budgets represents a worrying new trend. Already, more than 40 states place limits on local taxing authority. If states are going to stop cities and counties from adopting their own spending priorities – no matter how misguided they may be – that raises the question of whether localities will be masters of their own fates or merely subservient branch offices of the state.

“Local governments are in a total bind,” says Kim Haddow, director of the Local Solutions Support Center, which produced another recent preemption study. “You’re going to limit our ability to raise taxes, and then you’re going to tell us what we spend.”

States Think They Know Best

In Indiana, bills have been filed both to have the state take over the Indianapolis police department and to block localities in general from reducing public safety budgets by more than five percent or, when times are bad, by more than a percentage reflecting overall revenue decline.

Cities such as Austin and Los Angeles that decided to divert resources away from police did so in response to last year’s racial justice movement. Sen. Bohacek says he wanted to be “proactive” and make sure Indiana cities don’t go down the same road. If cities want to spend more money on social services or try out experiments like buying a hotel to provide housing, he says, “they can take it out of roads, they can take it out of parks, they can take it out of a lot of things.” 

But not policing. Bohacek concedes that public safety often consumes more than half of local budgets, but says residents need certainty that police, fire and emergency services will be maintained. The consequences of not doing so, he says, are too great.

And he’s not sympathetic to arguments that local officials might want to rethink their own priorities and should have leeway to do so. He notes that cities and counties are created by the state and argues that the state needs to put up “guardrails and make sure they do the right thing."

“I hear this argument that these are elected officials and if people don’t like what they can do, they can vote them out,” Bohacek says. But, he warns, “You can do a lot of damage in four years.”

Limiting Local Authority

While Bohacek expresses doubt about the wisdom of locally-elected officials, part of the argument against local health orders is that they’ve sometimes been issued by appointed or career staff.

“One of the things that this pandemic has really demonstrated is how much authority unelected bureaucrats actually possess,” says Jonathon Hauenschild of the American Legislative Exchange Council, or ALEC, a conservative group that has drafted model legislation influencing bills that would curb the health powers of governors and local officials.

The Missouri Legislature is considering a variety of ways to limit local health regulations. Health departments might be restricted to issuing orders and regulations for no more than 14 days out of a two-year period, unless they receive sign-off from the Legislature. 

"It's very simple: People have constitutional rights," Sen. Koenig says. "I don't know why local control means that the local government can do whatever they want, even if it means violating people's rights."

Koenig says health departments do have a role in inspecting restaurants for health violations, but contends that shutting them down en masse -- with the government choosing which businesses can stay open -- is going overboard. "Local control is actually you as an individual in a free society," he says. 

But health experts argue that local officials need to have the flexibility to act fast based on local conditions. “Being able to be nimble to address these problems is really critical,” says Adriane Casalotti, chief of government and public affairs at National Association of County and City Health Officials.

Although the pandemic is affecting all communities, it’s not affecting all communities the same way at the same times. Casalotti notes that more aggressive testing and tracing can lead to hyperlocal responses, with officials detecting outbreaks down to the neighborhood level. That’s something state officials – and certainly not legislators – can’t be on top of everywhere at once.

What’s more, the coronavirus is not the only health challenge. Tools taken away now might be needed in the future. There have been hepatitis A outbreaks around the country in recent years, but they have not risen to the level of national attention or even necessarily been a priority for state lawmakers. “There are public health crises that pop up all the time which are localized,” Casalotti says.

Hauenschild argues that the coronavirus pandemic clearly has everyone’s full attention. State officials have access to better data than local officials, he says. “Some of the reason for preemption would be to make sure there’s a uniform statewide standard for administration of the emergency and uniformity of response,” he says.

But if local officials need, in effect, to ask for permission to act, that can cause needless and harmful delays. Particularly when legislatures in most states only meet for a few months a year or, in a few cases, only every other year.

“It would be like saying the patient can go into the ICU, but you’re going to have to call me up every hour to get my approval,” says Eduardo Sanchez, chief medical officer for prevention at the American Heart Association. “And, by the way, I’m not going to be by the phone.”

When Preemption Is a Habit

Sanchez, a former Texas health commissioner, says it’s critical that policymakers and stakeholders at all levels hold discussions once the pandemic’s over about how to rectify policies and systems that turned out to be inadequate or misguided. Hauenschild raises an important point when he notes that emergency powers acts were generally written decades ago to address different sorts of crises than a pandemic that will soon hit the one-year mark.

But it’s one thing to try to build the plane and fly it at the same time, as is often said during a crisis. It’s another thing to ground the plane entirely. Ordering that time-tested health techniques be discarded while the pandemic is still taking lives is a bad mistake, Sanchez argues. “What you want to get built in are appropriate checks and balances, as opposed to hard stops and taking away rights,” he says. 

State preemption efforts used to be about setting floors – making sure minimal standards are followed everywhere. The current trend is to erect ceilings, blocking cities and counties from going further than the state as a whole. As new technologies emerge, states are keeping localities from making their own decisions over things like cell tower placement, notes Angelina Panettieri, a legislative director with the National League of Cities.

“This isn’t a grassroots uprising of people deciding this is what they want,” she says. “This is being driven by big companies with deep pockets that are able to invest in a lot of lobbyists who can change the regulations that affect their bottom lines.”

Wolfe notes that there’s often a racial element at work. “You have these predominantly white state legislators making decisions and setting ceilings that keep communities of color from putting into place policies,” Wolfe says.

If not always racial, there’s certainly a paternalistic attitude at work, with state officials convinced they know better than mayors and county commissioners about what policies work on the ground. Back in 2016, Arizona enacted a law that allows any legislator to challenge local ordinance as potentially conflicting with state law. If the attorney general agrees, the locality loses state funding. 

Abbott has called for a broad-based law in Texas to block local regulations, rather than taking “multiple rifle-shot approaches” at preemption. It seems like the logical next step. 

“Maybe states are signaling that there shouldn’t be a sense of local power,” says Lori Riverstone-Newell, an expert on preemption at Illinois State University, “that there really should be a subordination of local governments to the state.”
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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