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Will State Preemption Leave Cities More Vulnerable?

Local governments wish state officials would do more to combat coronavirus. In a few states, they’re angry that governors have issued orders that preempt cities and counties from setting their own course.

A cinema in Sherman, Texas, sits empty. Federalism sometimes pits states against cities in the pandemic era. [Sara Carpenter / For the Herald Democrat]
Like other mayors around the country, Kate Gallego is trying to keep her residents safe. The Phoenix mayor has closed gyms, bars and restaurants and restricted access to parks. But there are limits on how much she can shut down.

Gov. Doug Ducey issued a statewide stay-at-home order on Monday and announced schools will be closed for the remainder of the academic year. Still, Gallego and other Arizona mayors complain his restrictions don’t go far enough. Ducey has deemed many more types of businesses essential than most other governors, including golf courses, nail salons, barbers and pawn shops.

Gallego calls Ducey’s list “laughable,” but there’s nothing she or other mayors can do about closing those businesses.

State preemption of local authority has occurred with increasing frequency over the past decade. The current public health crisis has not halted the trend. In several states, local officials are frustrated they can’t respond as aggressively as they want to the novel coronavirus crisis, due to the policies of their governors.

“Mayors from across the state have asked the governor to tailor his list of essential services to better reflect the true needs of our community during a crisis,” Gallego says. “We do not believe golf courses or beauty salons would make it onto this condensed list.”

In Mississippi and South Carolina, state officials have issued orders or opinions blocking cities and counties from closing businesses on their own. On Wednesday, Florida Gov. Ron DeSantis issued a statewide stay-at-home order which will "supersede any conflicting local action or order issued by local officials." Texas has moved to block local governments from shutting down gun shops or releasing prisoners out of concern about health conditions in jails. 

“It is true that in most states, some 40 out of 50, the state has the right to preempt any local ordinances or rulings,” says Andrea Benjamin, an expert on urban politics at the University of Oklahoma. “But the governor doesn’t know the cities and counties as well as the mayors and county commissioners know their cities and counties — how much equipment they have, how much capacity.”

In the absence of national standards, there’s bound to be a patchwork of different approaches taken by states and within states. What particularly frustrates local officials, though, is that they feel like their hands are tied by their own states.

“States are forcing cities to work from behind,” says Kim Haddow, who directs the Local Solutions Support Center, which provides legal assistance to localities and opposes preemption. “The history of preemption over the last decade has left us vulnerable in a situation like this, because cities are on the front lines of keeping their residents healthy and safe.”

Preemption Is Second Nature to Some States

States have always preempted cities, but the tactic gained currency following a pair of Supreme Court rulings in the 1960s that diminished rural power in legislatures, says David Robertson, author of Federalism and the Making of America. “It seems like the fallback for a rural-based state government,” he says. “Once they lose their advantage in representation, they find other ways to repress cities.”

Preemption has accelerated in recent years. There’s been a mismatch between a majority of states being controlled by Republicans, while most big cities are run by increasingly progressive Democrats. “Over the last decade or even longer, we’ve seen states preempt cities on a wide range of issues,” says Brooks Rainwater, a senior executive with the National League of Cities (NLC). “There’s one party in control in many states and another party in control in cities.”

NLC has identified hundreds of examples of states preempting cities on issues such as minimum wage levels, paid sick leave requirements, regulation of ride and home sharing and gun control. It’s become second nature to some states not only to override local laws when it comes to controversial social and labor policies, but practically everything they do or regulate, from building design to tree removal

More than a dozen states have blocked local governments from banning single-use plastic bags. The plastics industry is hoping the novel coronavirus will prompt more such laws. The Plastics Industry Association recently sent a letter to federal health officials calling on them to declare reusable bags a threat to public health. “We simply don’t want millions of Americans bringing germ-filled reusable bags into retail establishments putting the public and workers at risk,” according to an industry group called Bag the Ban.

Rainwater says the pandemic has generally increased cooperation between state and local officials, running counter to the preemption trend. Still, he notes, “We’ve seen governors want to keep businesses open, while cities want to keep businesses closed.”

At a virtual town hall meeting on Thursday, Arizona Gov. Ducey defended his decision not to let cities set their own separate courses. “We wanted the state to speak with one voice for what was necessary and responsible for Arizonans," he said. "We're not going to have different guidance for 91 municipalities."

The Mismatch Between Cities and States

Even governors who were initially resistant to issuing stay-at-home orders for fear of crippling the economy have mostly accepted they have no choice. In Florida, DeSantis had argued a statewide order wasn't necessary as recently as Tuesday.

But there are variations in terms of how strict governors are being. Some have set a floor with their orders, allowing localities to impose tighter restrictions. A few have taken a different tack.

Mississippi Gov. Tate Reeves issued a shelter-in-place order on Wednesday but he did not revise the list of "essential businesses" as defined by an earlier order that supplanted local rules. Reeves’ original order allowed a wide range of businesses to remain open, including department stores and “offices.”

South Carolina Attorney General Alan Wilson issued an opinion last week finding that local governments including Charleston, Columbia and Greenville had exceeded their authority by placing restrictions on businesses and social gatherings that were stricter than those under emergency orders issued by Gov. Henry McMaster.

Tim Fleming, Georgia Gov. Brian Kemp’s chief of staff, complained on Facebook that local governments were following “doomsday models and predictions” and accused them of “cherry picking” which businesses could remain open. “Unfortunately, judgement is often clouded by power,” he wrote. “As a result of their overreach, many small businesses will struggle and some will not reopen.”

Kemp issued a stay-at-home order on Wednesday, closing K-12 schools for the remainder of the school year. He said he hadn't previously realized that asymptomatic individuals can spread the virus.

"Those individuals could've been infecting people before they ever felt bad," Kemp said at a news briefing. "But we didn't know that until the last 24 hours... This is a game changer for us."

Kemp's order overrode local restrictions, leading some Georgia beaches to reopen.

Overreaching, or Not Going Far Enough?

Given the disruption, there have been some complaints that government officials have overreached with shutdown orders. 

A group of six legislators in Colorado, for instance, issued a letter complaining when a local health district issued stay-at-home orders in three Denver-area counties. After Illinois Gov. J.B. Pritzker ordered the closure of bars and restaurants last month, a pizzeria in Taylorville hung a spray-painted banner in its window with the message, “Gov Pritzker Screw You.”

Some sheriffs have stated publicly that they will not enforce stay-at-home orders. “Sheriffs are often very important in rural areas where we haven’t seen escalating cases like we have in urban areas,” says Mirya Holman, a political scientist at Tulane University. “The partisan nature of the response to this may escalate these differences, where conservative rural sheriffs see actions by state lawmakers, particularly liberal lawmakers, as overreactions.”

Coronavirus cases have already been confirmed in a majority of rural counties. The disease may hit population centers first, but it’s spreading everywhere. As a result, at this point it’s more common to hear complaints that governments aren’t doing enough, as opposed to worries about overreaching. "There are a lot of people who feel the response hasn't been aggressive enough," says Nathan Lee, managing director of CivicPulse.

Lee's group released a survey of local officials last week, which found that in jurisdictions where there were documented cases of coronavirus, about half felt the state and federal responses hadn't been strong enough. "Our data certainly supports that there's a critical mass of local governments feeling that the higher levels of government aren't going far enough," Lee says.

If there’s dismay about inadequate federal and state efforts, there’s anger when states are actively blocking cities and counties from doing all they can on their own. The uneven response is partly political and partly cultural, says Robertson, who chairs the political science department at the University of Missouri-St. Louis.

“Federalism is about doing things differently,” he says, “and you see it in spades in this crisis.”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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