In “How Red States Are Fighting Their Blue Cities” at FiveThirtyEight, Monica Potts discusses a political conflict that is being played out in states across the nation. As Potts explains,
Preemption is an old, broadly used tool, and in the past decade, preemption bills have passed across the country, blocking local legislation on everything from culture-war issues to basic city governance. In Florida, a state Senate bill passed last week would prevent local governments from enacting rent control or rent stabilization. This year, other states are considering laws revoking local authority over school curriculum and punishing local district attorneys who don’t prioritize laws passed by the state legislature. Other states are threatening to take over whole chunks of city government. And there may not be much cities can do about it.
The tug of war between state and local power is an old one. Local governments, whose responsibilities are not outlined in the U.S. Constitution, have different levels of authority depending on the state, and it’s not always clear exactly what authorities localities have. “It is very much a gray zone,” said Christine Baker-Smith, a research director at the National League of Cities. “The only place where it’s clearly not a gray zone is when there is clear, clear guidance around a certain policy area.”
What has happened in the past decade is what many experts call a shift from “minimalist” preemption to “maximalist” preemption. An example of a minimalist preemption law is the minimum wage. No state can have a minimum wage that’s lower than the $7.25 set by the federal government,1 but they can go higher, and cities and counties can pass laws that set even higher minimums than their states … as long as their state hasn’t forbidden it through preemption laws.
Potts notes that the trend accelerated “during President Barack Obama’s presidency,” when Republicans organized their takeovers of many state legislatures. She notes further, that “A 2020 Economic Policy Institute analysis found the use of preemption was more prevalent in southern states.” The conflict plays out in a range of policies, including:
In the past few years, at least 25 states have prohibited local governments from raising the minimum wage. Eighteen states bar municipalities from banning plastic bags. At least 20 states have laws that prevent cities from banning gas stoves. Oklahoma is considering a bill that would prevent cities from banning combustion engines. Forty-two states preempt local legislators from passing gun regulations.2
Florida is one of 34 states that preempts many local housing laws, allowing rent stabilization only in an emergency; the bill that passed the state Senate last weekwould remove even that ability. The bill passed unanimously, but that was likely because the housing preemption was wrapped in a much larger bill, which includes measures to encourage mixed-use zoning and incentivize development of affordable housing. The bill’s proponents said it would help fix the housing shortage.
Potts adds, “This year, as of March 8, at least 493 preemption bills have been introduced into state legislatures around the country on a range of issues, according to the Local Solutions Support Center (LSSC), an organization that tracks certain preemption laws and advocates against them. Potts concludes,
For those who oppose what they call its overuse, preemption undermines the basic idea behind local governance — that communities get to set priorities that reflect their own values. Laurent said that preemption laws have a longer-term, corrosive effect on local participation. State legislatures are often influenced by special interests, she said, and preempting local action removes a tool people have to fight against that. “The entire purpose of having representatives is for folks to go up there and reflect the needs that your community has,” she said. “But unfortunately, that’s being silenced.”
Underlying this conflict is the brutal reality that the states have grossly disproportionate power in America. Thus Wyoming (population 570 thousand) has as many senators as California (population 39 million). Cities are also limited by their political boundaries. Standard Metropolitan Statistical Areas statistics are more relevant to the life of cities than tightly-drawn city boundaries, which balkanize urban political power to give state legislatures additional leverage. ‘Greater’ Atlanta, Philadelphia or Orlando are much bigger than their city limits. Los Angeles County, which includes about 140 incorporated cities, has more people than the 20 smallest states put together.
There are some fixes to help rectify this grotesque imbalance of political power, such as filibuster and Electoral College reform, urban annexation, preemption limits, or admission of new states. But all of them require Democratic landslides to get anywhere. Plenty of Republicans are drinking Trump’s Kool-aid to help set the stage for big Democratic gains. But it’s up to Dems to get smart and close the deal.
