Navigating State Preemption
A Guide for Local Government Managers and Citizens
North Carolina is no stranger to state preemption; in fact, the Public Facilities Privacy & Security Act or HB 2, which preempted local governments from passing anti-discrimination ordinances and required people to use the bathroom for their sex assigned at birth, is one of the most visible recent examples of preemption, costing the state more than $395 million. However, preemption is not new and has been increasing over time.
What is state preemption?
We define preemption as “the use of coercive methods to substitute state priorities for local policymaking.” In other words, states preempt their local governments when they dictate what types of policies their local governments can pass. Any branch of government — executive, legislative, and judicial — can preempt. There are four main types of preemption: ceiling, floor, punitive, and vacuum. Ceiling preemptions put a cap on policymaking. North Carolina’s minimum wage preemption is a ceiling prohibiting local governments from setting minimum wages above the state’s rate. Floor preemptions are the opposite, setting a minimum policy standard such as the state-wide prohibition on smoking in bars and restaurants; however, North Carolina local governments are free to regulate further the places where smoking is prohibited with a few exceptions outlined in state law. Punitive preemptions include financial and other consequences to local governments and their policymakers if they violate a state preemption. Arizona’s SB 1487 allows the state Attorney General to withhold resources from local governments for passing a law that violates state law. Vacuum preemptions prohibit local governments from regulating a policy area without creating a state standard. HB 2 did this when it outlawed anti-discrimination ordinances without creating a state anti-discrimination policy.
Why do states preempt their local governments?
While preemption is often touted as Republican state legislatures’ response to Democratic cities, the answer is not that simple. Democratic states also preempt their local governments. Another common explanation is unified government: when one party controls both houses of the legislature and the governor’s office, they are more likely to preempt. A third major explanation is interest groups, which lobby the state to create industry-friendly legislation. Perhaps the most accurate answer is: it depends. We argue that because states preempt across a wide variety of issue areas, each with its own politics and constituencies, it is important to look policy area by policy area for explanations for preemption. For example, we observe more conservative legislatures are more likely to adopt affordable housing preemptions, while more professional legislatures and states with more renters (a potential interest group) are less likely to adopt these preemptions. While conservative legislatures are more likely to pass worker’s rights preemptions, so are unified governments, and legislative professionalism and interest groups do not impact the adoption of these laws. The causes of state preemption are complicated and varied, but there is no doubt it is something almost all local governments face.
What does this mean for local government managers?
As states increasingly preempt, it becomes more difficult for local government managers to respond to their constituents’ needs. Local governments and their managers must figure out how to navigate between public opinion and state preemption requirements. This necessitates creativity. For example, after Tennessee’s Heritage Protection Act preempted Memphis from removing Confederate monuments, the city transferred ownership of the land where the monuments were to a nonprofit group, which then removed the monuments. When local governments face fiscal preemptions, they often contract out services. The National League of Cities suggests three strategies: communicate the problem, build a coalition, and pursue litigation. HB 2 shows the power of gaining media attention and public support in opposition to preemption. More broadly, local government managers need to be aware that preemption is happening and stay engaged with what is going on at the state level to anticipate preemptions and, if necessary, lobby against them before they happen.
What can citizens do about preemption?
Preemption is not just something local governments must address. Citizens need to stay informed about state policy as well. If they are not happy about an existing or proposed preemption, there are things they can do. They can lobby their state government directly by contacting policymakers or indirectly through relevant interest groups. They can join coalitions aimed at addressing preemptions. Perhaps most importantly, if they are eligible, they can vote. As mentioned earlier, partisanship is a key determinant of many types of policy preemptions. Even when partisanship does not matter, elected officials do, and voting is one of the best ways for residents to ensure policies that match their preferences.
This article based on the papers “Why States Preempt City Ordinances: The Case of Workers’ Rights Laws” in Publius: The Journal of Federalism and “State Preemption and Affordable Housing Policy” in Urban Studies.
This post was coauthored by Megan E. Hatch and Christopher B. Goodman.
