The Problems & Progressive Local Solutions
Local governments in the U.S. have paved a progressive path in many policy areas that the federal and state governments have either failed, avoided, or were unable to address. However, since 2010 cities and counties have faced aggressive and alarmingly successful efforts by state legislators to limit their autonomy and authority.
These state intrusions are driven by corporate interests and their political allies. Much of this legislation has been drafted by the industry-funded organization American Legislative Exchange Council (ALEC). According to a recent analysis by the State Innovation Exchange (SiX), 26 states currently preempt local minimum wage legislation; 23 states ban local paid sick days; 43 states limit gun regulation; 15 states ban local plastic bag bans; 31 states ban rent control; and the list goes on.
To defend the autonomy of local governments, it is necessary to reverse the tide of preemption laws. Useful strategies for this aim include repealing preemption laws through the state legislature, challenging preemption in courts, and proactively strengthening local authority through state legislation.
Available Local Levers & Targets of Reforms
The most direct strategy to protect local authority is to lobby friendly state legislators to repeal or amend existing preemption laws. Alternatively, cities and counties can enlist allies in the legislature to enact the desired local policy statewide.
Preemption laws can also be challenged in the courts, especially where the state constitution grants local governments a charter to govern as they see fit (“home rule states”). Such legal actions can focus on an entire law or on specific provisions that limit local control. Punitive preemption laws are especially vulnerable on the grounds of free speech, legislative immunity, and due process.
Since preemption doctrines and their limitations vary by state, in some instances local governments can draft legislation narrowly so that the local law fits in alongside state law or policy. Cities and counties can also pass such ordinances and wait until they are sued by the state, then strive towards a favorable settlement.
Current Reforms & Tools to Fight for Them
Despite the alarming rise of preemption laws, local governments have won some important victories in the fight against preemptions laws and state intrusions. In the first months of 2019, local officials and state legislators, aided by advocacy groups and progressive organizations, have made significant progress in repealing and weakening preemption laws.
In May 2019, Colorado became the first state to repeal its minimum wage preemption laws when that state legislature repealed a 20-year old prohibition on local minimum wage under. Colorado also repealed a clause in a law that prevented local regulation and taxation of tobacco.
In Florida, a coalition of cities recently won a victory against preemption of local gun regulations. The coalition challenged the penalties on local officials added to the law in 2011, and in July 2019, a county circuit judge found them to be unconstitutional. A month earlier, a State Senator Linda Stewart pre-filed a bill to repeal a law preempting regulation of single-use plastic bags and foam containers.
In New York, the Town of Dryden amended its zoning ordinance in 2011 to ban all activities related to oil and gas exploration. Norse Energy challenged the amendment in court, arguing that it was preempted by a state law that governs oil and gas extraction. In 2014, the court ruled that state law does not preempt town zoning ordinances.
In Pennsylvania, a coalition of local governments and environmental groups challenged a 2012 amendment that preempted local regulation of oil and gas explorations. In December 2013, the State Supreme Court ruled that portions of the law restricting local zoning were unconstitutional. In April 2019, Pittsburgh city council approved certain gun restrictions in defiance of state preemption laws. Mayor Bill Peduto is currently trying to convince other cities to similar ordinances as an act of municipal disobedience.
Taking it to the Next Level
Going forward in the struggle against preemption, cities and counties can work to proactively strengthen local authority through state laws. Proactively limiting preemption can include promoting state laws that strengthen home rule, adding constitutional amendments that block punitive preemption or enumerate specific policy areas that are immune from state override. A proactive approach can also include adding non-preemption language in state laws and ballot initiatives that are proposed on specific issues.
Since state legislatures can be hostile to progressive local policies, especially in more conservative states, cities and counties should form coalitions and enlist advocacy groups and nonprofit organizations to bolster their claim. Associations of counties, leagues of cities, and other organization that bring together local authorities from across the state can be instrumental for this purpose.
Helpers & Allies
Most of the struggles against preemption laws are focused on specific issues affected by the law, and the coalitions working to repeal or challenge these laws vary by their content. Thus, the National Employment Law Project (NELP) works towards repealing minimum wage preemption laws, the American Civil Liberties Union (ACLU) has helped in legal struggles related to LGBTQ rights, and the Gifford Law Center has worked to repeal gun control preemption laws.
Since state legislatures can be hostile to progressive local policies, especially in conservative states, cities and counties can form coalitions with other local governments and enlist relevant advocacy groups and nonprofit organizations to bolster their claim. Associations of counties and leagues of cities can be instrumental for this purpose. For example, the Florida League of Cities have recently joined forces with the AFL-CIO, Equality Florida, Surfrider and the American Heart Association to fight back against state preemption laws.