State Preemption and the Fracturing of America
Americans justifiably worry about our national divisions, the effective operation of our institutions, and the future of democracy itself. Republican-led states differ dramatically from those run by Democrats, and these differences reveal themselves both in the capitol buildings of our state capitals and in Congress. In the last several decades, a new source of division has also sprouted, one that pits localities against their own state governments. In some instances, conservative rural areas have been the source of these clashes (the clearest example involves “Second Amendment sanctuary jurisdictions,” where local leaders pledge to ignore gun regulations they claim to be “unconstitutional”). Most of these conflicts, however, emanate from democratic-leaning communities, many of which are attempting to chart policy directions different from their ruby red states.
Over the last decade, local leaders have passed myriad ordinances — from increasing the minimum wage and banning plastics to mask mandates and gun safety regulations — that many conservative state legislators have found objectionable. In response, those legislators have passed a slew of laws designed to nullify these local measures. Former Speaker of the U.S. House of Representatives, Tip O’Neill, once famously asserted that “all politics is local.” But when local jurisdictions seek to adopt certain policies at odds with the prevailing statewide politics, state lawmakers are more than willing to substitute their own views for those in local leadership. Not only has O’Neill been dead for 27 years, but his adage has now been buried under legal principles called “the Dillon Rule” and its even stronger policy cousin — “state preemption.” Preemption occurs when a higher level of government, such as a state legislature, restricts the authority of a lower level of government, such as a city council. It represents yet another battleground upon which advocates of change and their opponents fight over the future of the nation.
Dillon Rule vs. Home Rule
The Dillon Rule embodies a legal principle that asserts that local governments have no inherent powers and instead derive their authority solely from their states. Named for John F. Dillon, the former Chief Justice of the Iowa Supreme Court in the 1860s who crusaded against localities he believed were less competent and more corrupt than state governments, the Dillon Rule is the source of severe consternation among local governments who seek to chart policy courses different from their states. Proponents of the rule argue that the U.S. Constitution does not discuss local governments and that municipalities have no inherent powers. Consequently, local governments should be permitted to exercise only those powers that the state expressly grants to them. Over one-half of our states operate under some form of the Dillon Rule. Local elected officials often rail against the principle, citing it as the reason why they cannot enact ordinances their constituent’s desire.
In response to Dillon’s Rule, a different approach to state and local relationships emerged at the end of the 19thcentury. Called “home rule,” it gives some or all localities within a state the ability to pass laws to govern themselves unless expressly forbidden by state or federal law. Proponents of home rule argue that local governments should enjoy distinct realms of authority upon which state power should not infringe. Beginning with Missouri in 1875, states began amending their constitutions and statutes to provide local governments more autonomy. Today, about 40 states have some measure of home rule within their jurisdictions.
Home rule states differ in the size of communities to which it applies. Texas, for example, grants home rule to over 300 jurisdictions with populations over 5,000 while the Illinois constitution extends it to all municipalities with populations in excess of 25,000 and all localities who choose it by public referendum. And home rule state constitutions do not provide unfettered authority to localities. In Ohio, for example, the constitution specifically states that minimum wages cannot be established at the local level.
When “home rule” jurisdictions pass an ordinance, the measure is generally viewed as permissible, and courts typically grant a presumption that their actions are proper. In Dillon Rule jurisdictions, this presumption is reversed; if the state has not specifically authorized the action, it is often assumed to be improper. This creates a chilling effect in local governments where officials pushing innovative policies frequently ask themselves “is this permitted under state law?” In states like Arizona and Virginia, localities that have sought to attack affordable housing challenges through inclusionary zoning have been stymied by the Dillon Rule.
While local ordinances in home rule states remain subject to judicial interpretation, courts do not typically find local ordinances preempted by state law unless there is a clear and specific legislative intent to do so. This gives these localities much greater flexibility than in Dillon Rule jurisdictions and allows some controversial initiatives to withstand court challenges. Local anti-smoking ordinances provide a good example. In 2017, Topeka, Kansas passed an ordinance raising the smoking age from 18 to 21. Kansas is a home rule state and the legislature had passed legislation to regulate smoking without raising the age of permitted consumption. Consequently, when a tobacco retailer sued to declare Topeka’s ordinance an unconstitutional usurpation of state law, the court ruled for the city, holding that the state law was insufficiently precise to nullify the local action. Similarly, a court challenge to the City of Houston’s 2007 ordinance restricting smoking in public places failed because of home rule provisions in that state’s constitution.
The desire for more local control has been spurred by demographic change, especially in urban areas and the public’s tendency to relocate to places that share their values. Called “the big sort,” it is helping to divide the country based on residency. Urban centers are not only more Democratic, but are also becoming locations for those who make up the “creative class” — a population that values education, innovation, and openness. This is evident in larger areas like San Francisco and Atlanta and in smaller cities like Austin and Raleigh. One byproduct of the demographic shift has been the desire by progressives to create more “home rule” options for localities and to jettison the Dillon Rule in states where it exists. It is no surprise that these citizens want more control over public policy in the local area. But it often creates a clash between urbanites who favor local autonomy and other parts of the state that control the legislature.
Home Rule is No Panacea
For those communities stifled by the Dillon Rule and who seek more local control, home rule is attractive. But it does not solve all problems, if only because legislatures in most home rule states are constitutionally able to preempt a local initiative, either before or after it has been adopted. Ohio is viewed as one of the strongest home rule states in the country. But when Cleveland challenged its state’s broad preemption statute prohibiting localities from adopting gun safety measures, it lost in the state’s Supreme Court. In Missouri and Idaho, two states that permit some degree of local home rule, the state legislature recently passed a law that mirrored twenty other states in preempting localities from regulating the use of plastic bags.
In the last decade, 12 cities and counties in 6 states have approved local minimum wage laws only to see them invalidated by state statute. And 25 states now prohibit localities from adopting a minimum wage greater than what the state permits. In Kansas, where cities have home rule by constitution and counties have it by statute, local efforts to require restaurants to list calories on their menus have been frustrated by state prohibitions. Miami, Florida passed an ordinance in late 2018 mandating the inclusion of affordable housing in new developments in certain neighborhoods, only to see it preempted by legislative action in early 2019. When state legislatures want to stop a local initiative, whether the state operates under the Dillon Rule or home rule can mean very little.
Key Republican governors are increasingly hostile to local initiatives. Governor Greg Abbott of Texas, has called for the state to preempt most local initiatives, arguing that a “broad-based law…overriding local regulations” is superior to a “multiple rifle-shot” approach. During the pandemic, Florida Governor Ron DeSantis was openly hostile to locally imposed restrictions. He supported the Florida Legislature when it overturned three local initiatives in Key West by which voters approved a limit to the number of cruise ships and passengers entering the city. And the Governor signed this year a creative and unprecedented law allowing Florida businesses to sue for damages if a newly passed or amended local ordinance causes or is expected to cause a decrease in their profits by 15% or more.
The Pandemic Accelerates Preemption
State preemption has increased in recent years, and the pandemic served as an accelerant. Convinced that local officials were overstepping their authority by enacting mask mandates, business closures, and limitations of public gatherings, conservative lawmakers in almost one-half of the states enacted prohibitions to stop them. This occurred even in home rule jurisdictions such as Florida, where state lawmakers seem especially suspicious of the actions of voters at the local level. In that state, it appears that Governor Ron DeSantis can now invalidate local emergency orders with which he disagrees.
Other efforts to enact stronger local health initiatives have also fallen victim to preemption. As of March 31, 2022, 12 states have laws or court decisions that explicitly preempt local ordinances from restricting smoking in government worksites, private worksites, restaurants, or bars.
Our national reckoning with race has encountered similar challenges. When localities sought to remove confederate statuary from their communities, many southern states enacted laws to prohibit it. In the last two years, states across the nation also passed bans on critical race theory. In some instances, this preemption has taken the form of executive action, such as in Virginia, where newly-elected Governor Glenn Youngkin’s first action was to issue an executive order preventing “inherently divisive concepts, including Critical Race Theory….” from being discussed in school divisions.
These actions may not meet the standards of each state’s code and Constitution. In both Virginia and Florida, for example, local school boards have substantial power under their Constitutions, and it is unclear precisely how much of either Governor’s desires can be achieved without additional legislative action. But that is not stopping state leaders, whose message is clear — if localities get out of line, the state will rein them in.
Striking A Balance
While local officials decry state preemption, there are situations where it may be justified. States should not become a patchwork of different laws. There is value in having minimum standards that applies to everyone. Most would argue, for example, that federal civil rights laws passed during the 1960s to bar discrimination at the state and local level were justified. Statewide smoking bans in public places make us all healthier, and state fair housing requirements improve equal access to shelter. Would we really want communities to pass laws permitting smoking in their particular jurisdiction if their state restricts it? Or grant lesser standards for clean water? And isn't it better that living wage scales cover an entire state than simply a few towns or counties? In short, home rule needs to be balanced with a healthy dose of state consistency.
Presently, the power relationships between state and local government are skewed in favor of the state. Here are some ideas to return some balance:
The National League of Cities has advanced an elaborate Model State Constitutional Amendment to establish and protect home rule in each state. Given the politics of state legislatures at this time, and the difficulty of passing constitutional amendments, such an approach would be challenging. Nonetheless, the principles are worthy of exploration.
Grant home rule to any jurisdiction over a certain population. For some states, this might be 25,000; for others, it could be 100,000. This could be done either by constitutional amendment or state statute and could include provisions to require a municipality to secure a special charter approved by the state.
Permit localities to pass legislation that is more expansive than state law (often referred to as “floor preemption”). In most states, for example, state building codes provide minimum construction requirements and block localities from imposing more rigorous standards. But what if a locality wants greater energy efficiency? This approach would preclude the state from preempting it. This could be done by statute or constitutional change. For example, Montana, Pennsylvania, and Virginia presently have constitutional provisions to protect the environment. A clause added to these provisions to give localities the ability to be more expansive could provide the vehicle to accomplish this goal and eliminate any state legislative preemption.
Change the number of votes needed for the legislature to preempt an otherwise permitted local initiative from a majority to supermajority. This would provide a huge benefit to localities in existing home rule states by making it more difficult to reverse local ordinances.
Require states who seek to nullify a local law to do so expressly and demonstrate a substantial state interest in the change. This is occurring in more courts, but it should be part of statutory law. This will make it less open to judicial interpretation and provide local governments with clear signals about state legislative intent.
These approaches permit preemption, but they subject the practice to more stringent requirements. Local governments would be free to innovate, but would remain subject to state authority. Legislators like their prerogatives, so any efforts to restrict their power to preempt a law will encounter resistance. But if the public believes that the government that works best is the government that is closest to the people, a readjustment in the state/local power relations is worth the effort.
About the Author:
David J. Toscano is a practicing attorney in Charlottesville with 25 years of elected service in state and local government. He has served as Mayor of Charlottesville. Also, for 14 years, he sat in the Virginia House of Delegates, where he was the minority leader for 7 years. Toscano is the author of two books, Fighting Political Gridlock: How States Shape Our Nation and Our Lives (foreword by Sen. Mark Warner), University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020 (foreword by Sen. Tim Kaine), Hamilton Books, 2022.