Preemption laws: The efforts of state legislatures to control local governments by “preempting” local policy.
Lori Riverstone-Newell
Lori Riverstone-Newell doesn’t mince words when she speaks about the growing aggression in recent state preemption laws. “It’s like a ‘whack’ from the state, forcing local governments to get in line,” she said.
A state law negating gender-neutral bathrooms here, forbidding the banning of fracking there—Riverstone-Newell’s research explores how preemptive laws are a growing way for states to keep “rebellious” cities and local governments in check.
Riverstone-Newell, an associate professor of politics and government at Illinois State University and author of Renegade Cities, Public Policy, and the Dilemmas of Federalism, has studied the evolution of state preemption. A tool once used to set parameters for local legislation, the use of preemption is rising as a way to impose complete bans on local legislation in specific policy areas. “This heavy-handed use of state preemption dates to the 1980s, when tobacco companies lobbied state legislatures to preempt local tobacco regulations,” said Riverstone-Newell, calling it a ban of a ban. “Instead of going door-to-door in localities and fighting in local arenas, companies like R.J. Reynolds found it was more efficient to pressure state legislators for preemption.” In the 1990s, the National Rifle Association followed the same game plan when faced with local firearm regulations.
States have legal authority over their localities and, from time to time, they use it to cajole, threaten, and force local governments to comply with state wishes. — Lori Riverstone-Newell
According to Riverstone-Newell, using preemption to rein in progressive local governments has risen dramatically over the past few years. “This trend reflects the shift in state legislatures from mostly Democratic to mostly Republican control,” said Riverstone-Newell. She noted 32 states have Republican-controlled legislatures, and 24 of those states also have a Republican governor. “In these states, conservative interests dominate state-level policy, while local governments, particularly cities, favor progressive policies that reflect their population’s diversity and other conditions that are unique to cities.”
Riverstone-Newell pointed to Charlotte, North Carolina’s “bathroom bill,” which modified its nondiscrimination policy to include “sexual orientation, gender identity, and gender expression,” allowing individuals to use restrooms in accordance with their gender identity, among other protections. “North Carolina’s legislature moved quickly to preempt local nondiscrimination policies that in any way diverge from the state’s, which does not include protections for gender identity or sexual orientation,” she said.
The nation tends to admire ‘cowboy politics,’ or leaders and cities standing in defiance, said Riverstone-Newell.
The recent show of force in state-local relations is not the first time that the two levels of government have gone head-to-head, noted Riverstone-Newell. “States have legal authority over their localities and, from time to time, they use it to cajole, threaten, and force local governments to comply with state wishes,” she said, adding that localities have their own means to accomplish their goals, despite their legal subordination. “This is especially true for cities which serve as administrative agents for many state programs, as well as the economic engines of their states.”
Because of their importance to their state’s economic and programmatic success, medium and large cities often push back when faced with unfavorable state policies or demands, said Riverstone-Newell. “The recent use of state preemption authority to shut down local progressive policies is an escalation of state control over local issues. Indeed, many of the preemptions in question impose legal or monetary penalties on noncompliant localities and officials,” she said.
These clauses permit private legal action against individual leaders and local governments, which can deter any defiance against the state. “If legal action is taken, leaders and localities may be prohibited by the preemption law from using city resources to support their defense. They are on their own,” said Riverstone-Newell. “This is a big change, and one that may bring local innovation to a halt.” Cities rarely risk using taxpayer money for litigation, she noted, and that is even more of a threat for individual officials. “If you’re a local leader, even if you think that’s the right thing to do when it comes to banning hand guns in public parks, for instance, who will take the chance if it exposes the leader to litigation or job loss?”
The nation tends to admire “cowboy politics,” or leaders and cities standing in defiance, said Riverstone-Newell. “But we have to understand that there’s a cost associated with that rebellion.”
The cost goes beyond the autonomy of cities or localities, noted Riverstone-Newell. “In this case, degraded cooperation and heightened hostility between states and their localities may slow or hinder progress in policy or program arenas of great public import, such as public education, economic development, infrastructure improvements, among many others.”
Also threatened are local policy innovations, many of which have successfully resolved problems that the states have lately been unable or unwilling to address. “With recent bouts of legislative gridlock and fiscal stress slowing policy innovation at the state level, local governments have proven themselves to be flexible, creative, and capable policymakers,” said Riverstone-Newell. “With no reason to expect an end to hyper-partisanship or economic stress, the movement to preempt local policy innovation may result in a slower, less responsive, less agile intergovernmental system.”
In this time of raucous politics, Riverstone-Newell’s arguments are gaining attention, like the recent shout-out from The New York Times. Unless those living in cities gain a greater foothold in state lawmaking, she doesn’t see state and local relations improving any time soon. “This is a conservative thing, telling liberal cities that they’re getting too big for their britches and that they need to settle down now,” she said. “But I doubt they will.”
