In Brief:
This year, the San Antonio City Council has passed numerous ordinances meant to protect residents. That’s what you’d expect from a city council. In March, the council voted to impose additional fees and inspections on landlords who don’t rectify unsafe living conditions. In May, they passed a “tenants’ bill of rights” resolution to make renters more aware of protections under state and federal law. Then, toward the end of a long, hot summer, they passed a requirement in August that employers provide shade, water and breaks when the temperature exceeds 95 degrees.
Such actions might be blocked if the City Council attempted them now. A broad pre-emption law went into effect in Texas last month that takes away the ability of cities and counties, in most cases, from passing laws in areas that are now the exclusive domain of the state, including business, labor, natural resources and property. A state judge declared the law, derided by opponents as the “Death Star bill,” unconstitutional in August, but it took effect anyway as the appeals process continues.
“We all know that local government is the closest to our communities and thus best positioned to respond to local needs,” says Teri Castillo, a member of the San Antonio City Council. “The Death Star bill strips local officials of the ability to respond.”
Texas is not alone. Pre-emption has become a primary policymaking — or policy breaking — tool of state governments over the past dozen years or so. States have pre-empted localities across a broad range of policy areas, including minimum-wage levels, environmental protections, police budgets and public health.
At this point, however, state lawmakers are not only asserting their control over specific policies, but much more widely limiting the ability of cities and counties to set their own courses or even, in some cases, choose their own leaders. “In some states, they’re trying to return to the Gilded Age, in terms of stripping away municipal home rule,” says Paul Diller, a Willamette University law professor. “But they’re not doing it by rewriting the constitution. They’re doing it either in one big stroke or through death by a thousand cuts.”
Whole Lotta Pre-Emption Going On
In Georgia, Senate Republicans have called on a panel to investigate Fulton County District Attorney Fani Willis under a new law, which took effect this month, allowing state sanction of "rogue" prosecutors. Willis has indicted former President Donald Trump and more than a dozen allies for allegedly interfering with the 2020 election. Both the new law and the senators' complaint are clearly payback for this action. GOP Gov. Brian Kemp has rejected calls for a special session to remove Willis, saying he doesn't believe she's done anything illegal.
Mississippi extended its own ability to patrol and prosecute people within the city limits of Jackson. Tennessee moved to reduce local lawmaking ability directly in Nashville, cutting the number of seats on its Metro Council in half. The city sued and won, with the state dropping its appeal due to local elections this year. Still, state Attorney General Jonathan Skrmetti insists the smaller size will be the standard moving forward.
“This is a pattern we’ve seen throughout this entire legislative session, as well as sessions before — state governments preventing localities from policymaking around issues that are truly local, whether it’s criminal justice reform or educational curriculum decisions or worker protections,” says Katie Belanger, lead consultant with the Local Solutions Support Center.
Belanger points out that pre-emption is not necessarily a bad thing — it’s “a neutral policy tool,” she says — but states are now going beyond bigfooting cities and counties on specific issues to take away their lawmaking authority more generally. “They’re actually just attacking local governments and the existence of local governments,” she says.
What’s Driving This
There are examples of blue states pushing around red areas. In July, Oregon updated its first-in-the-nation statewide rent control law, which rural areas didn’t want in the first place. Blue-state requirements around water usage or other environmental protections have prompted a lively secession movement among rural counties in several western states.
“The problem is the state legislature is trying to do something for the whole state, but taking away local authority to address these problems,” says Christine Baker-Smith, research director for the National League of Cities' Center for Research and Data. “They are well-intentioned efforts in many cases, but at the same time they are putting limits on municipalities and their economies.”
Present-day pre-emption trends are mostly driven by red states blocking liberal cities from pursuing policy aims. Diller suggests that a couple of factors are at play. For one thing, politics has become more nationalized and multistate interest groups have become more effective at promoting model bills from state to state. “There’s more of a national infrastructure for spreading policy ideas around the country,” he says.
There’s also a political mismatch within states. Big cities such as Chicago, Louisville and Milwaukee have never gotten much love from rural legislators, but now there’s a complete partisan divide between Republican rural areas and Democrat-dominated major cities. In a majority of states, that translates into GOP majorities that feel little loyalty to their largest cities.
“There’s a continuing, widening split between urban areas and exurban and rural areas in terms of their policy preferences,” Diller says. “You do have urban areas in some states trying to do things that the rest of the state doesn’t like, or at least the politicians representing the rest of the state don’t like.”
This dynamic not only translates into conservatives blocking progressive policies, but has given corporations a powerful tool for eradicating local regulations they argue are unduly burdensome. Some say racial politics are involved, given the demographic differences between cities and outlying areas. “There is no question this has racial implications, taking power from Black and brown communities,” says Luis Figueroa, chief of legislative affairs for Every Texan, a progressive nonprofit group, referring to the state’s Death Star bill.
A Widening Net
There’s always a power imbalance between states and localities. The level of home-rule authority varies from state to state, but it’s clear that the state is the dominant partner, generally able to strip powers away at will from cities and counties. Now that the pre-emption habit is well-ingrained, perhaps it’s not surprising that it continues to grow stronger.
There are lots of instances of local governments banding together to push back against pre-emption attempts. Even Republican local officials opposed the Texas Death Star bill. And pre-emption is not always a one-way street. Arizona has been one of the most active pre-emption states in recent years, but in 2022 the state restored the power of cities to create licensing and permitting requirements for short-term rentals such as Airbnb. Local regulation of short-term rentals and ride-sharing services has been one of the most active areas of pre-emption in recent years.
Local officials can not only form alliances among themselves, but find common cause with interest groups concerned with a specific policy approach put at risk by pre-emption, says Baker-Smith, of the National League of Cities.
“I think what we will see is a greater activation of the folks who are pushing back against state pre-emption,” she says. “Unfortunately, that’s a lot harder to do when it’s a blanket pre-emption like we see in Texas.”
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