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States vs. Locals: The Never-Ending Conflict

Localities have always been creatures of state government. But their freedom to act independently is up against ever more stringent limits.

A large fleet of Cruise autonomous vehicles (AVs) in a lot in downtown Austin, Texas. Many residents were furious about the 150 AVs tooling around the city, with several crashing. But the city couldn't do anything because it doesn't regulate cars. The feds do, and the state regulates drivers.
(Bob Daemmrich/Zuma Press Wire/TNS)
“American cities are under attack,” the legal scholar Richard C. Schragger wrote recently in the Texas Law Review. He was talking about what he and other experts are calling “abusive state pre-emption,” in which mostly conservative state officials are reining in the power of mostly liberal local governments.

It may seem like something new, but it’s a battle that’s raged since the nation’s founding, when local governments were the forgotten players. Today there is still an argument over how much autonomy they ought to have, and what’s at stake is the role they’ll play in American government in the coming years — and decades.

The story goes back to the debate in 1787 over ratifying the Constitution, when the states were the building blocks of the new country and local governments got nary a mention in the deliberations. Alexander Hamilton and others talked about “local government” in the Federalist Papers, citing “the utility and necessity of local administrations for local purposes,” but that apparently meant state as well as genuinely local institutions.

In his grand tour around the U.S. in the 1830s, the French writer Alexis de Tocqueville marveled at how America’s towns brought liberty to life. But they did so only at the pleasure of the states, which had created local governments and circumscribed their power, as Iowa jurist John Forrest Dillon described it in 1868. “Dillon’s rule,” in fact, continues to define the balance of state-local power in 40 of the 50 states. It restricts what locals can do without explicit state approval.

The balance of power began to shift with the Great Depression. Franklin D. Roosevelt’s New Deal emergency plans provided federal grant money directly to cities. Artifacts of those programs still survive, from classic fire stations to murals inside public buildings. But World War II pushed the programs aside until the mid-1960s.

That’s when Lyndon B. Johnson’s Great Society created federal-local bridges that had real staying power. The Model Cities, urban renewal, job training and subsidized housing programs provided direct support from Washington to local governments. Many states had to give explicit permission for their local governments to accept the federal money, and they did, but most were none too happy about that.

Then the rise of sophisticated computers dealt the states some aces. The computers, connected with Census numbers, provided rural conservatives with a way to keep a handle on state power by drawing more safe districts. Democrats played the game well, but Republicans have played it better. In 1992, just three states had a Republican trifecta, with the GOP controlling both legislative chambers and the governorship. Today there are 22. Over the same period of time, the number of Democratic trifectas has stayed about the same — 16 in 1992 and 17 today. Blue states have gotten bluer — and more states have become more predictably red, to the point that only 11 states now have divided party government.

All of this has shifted more of the state-local rivalry from traditional fiscal struggles to more divisive social policy conflicts.

Florida Gov. Ron DeSantis has suspended two elected local Democratic prosecutors, principally for pledging not to prosecute individuals seeking gender-affirming care. He intervened in local school policy by signing a bill prohibiting students from using TikTok on any state-owned device, including classroom and library computers.

Alabama, Montana and Nebraska pre-empt local government regulations on broadband. In Arizona, Idaho, Utah and all of the South, state governments pre-empt local efforts to guarantee transgender rights. The Dakotas and Oklahoma pre-empt local teaching about race and racism in the school curriculum.

The left has scarcely been immune from the temptation to pre-empt. California Gov. Gavin Newsom lost patience with the efforts of big cities to reduce homelessness, so this year he pushed through new funding for homeless programs, along with tough new requirements aligning planning areas with local government boundaries. Forty states pre-empt local power to regulate gig workers such as drivers for Uber and Lyft. That includes the reliably blue states of Delaware, Hawaii, Massachusetts and Rhode Island.

Still, the current round of pre-emption has mainly been a battle launched from the right. And it has aggravated local officials no end. In Austin, Texas, many residents were furious about the 150 Cruise autonomous vehicles tooling around the city. One AV crashed into a parked car, and one of the company’s buses was involved in a slow-motion crash with a building at 6 mph. It turned out the bus “did not have a steering wheel or a place for a driver.”

But Austin couldn’t do very much. The feds regulate vehicles, Texas regulates drivers and the city — well, the city had no power at all, thanks to the Dillon rule. Councilmember Zo Qadri complained that “the state Legislature has tied our hands on this one. They've taken away our ability to regulate these companies."

There aren’t precise measures of how much state pre-emption has grown over time, but Governing’s Alan Greenblatt has found that states are getting more aggressive about handcuffing their local governments. Meanwhile, urban communities have increasingly become the engine of American growth. In 1950, 64 percent of the U.S. population lived in urban-based metro areas. It’s 83 percent today, and demographers project it will be 89 percent by 2050.

So here’s the pre-emption recipe: Take growing political power on the right to run a large number of state governments. Mix in the rise of ever more divisive social policies. Fuel it with a population increasingly concentrated in urban areas and liberal activists increasingly unhappy with the rise of conservative power centers. The result, at least for now, is a mess.

This is about much more than pre-emption. It challenges de Tocqueville’s sunny assessment of democracy in America. Maybe the pre-emption debate doesn’t guarantee deeper divisions in the country. But avoiding those divisions will require far more attention to the sector of American government that the founders ignored.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.

Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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