Addressing Preemption to Empower Local Governments

Read our COVID-19 Response & Recovery blog series

By Derek Carr & Sabrina Adler

COVID-19 has urgently demonstrated that everyone needs to live in safe and healthy communities. The people most affected by COVID-19 are communities of color, people with low income, immigrants, and other underserved groups. These groups are most vulnerable in part because of existing laws and policies that affect the fundamental drivers of health inequities. Communities and local governments that take steps to ensure health, safety, housing, food, and economic stability for all of their residents will be helping to prevent the spread of COVID-19 and laying the groundwork for health equity and prosperity for future generations.

To help communities and local governments strengthen their response to COVID-19 and advance health equity, we’re publishing a blog series about policies that they can enact right away. This post is the seventh in the series.

Preemption & COVID-19

As local governments seek to address the myriad health, social, and economic consequences of COVID-19, they first must discern whether they have the legal authority to do so. Unfortunately, for many local governments, the misuse of state preemption threatens their ability to adopt the health- and equity-promoting laws and policies necessary to respond to and recover from this crisis.

Preemption is a legal doctrine that allows a higher level of government (eg, state government) to limit or even eliminate the power of a lower level of government (eg, local government) to regulate a specific issue. The tug-of-war over the distribution of power among different levels of government is nothing new. Over the past decade, however, corporate and conservative interest groups have wielded preemption as a cudgel to quash local government power over a range of issues, often stifling reforms and innovations that could correct inequities. Much of this effort has been coordinated by the industry-funded American Legislative Exchange Council (ALEC), which develops and distributes model preemption bills for like-minded lawmakers.

ChangeLab Solutions’ new fact sheet Consequences of Preemption for Public Health & Equity explains how preemption can have a profound effect on health, equity, and well-being even in the best of times. But COVID-19 shines a harsh light on the significant consequences that can result from misuse of state preemption.

In roughly 1 in 5 states, for example, state officials have acted to prevent local governments from implementing preventive measures to reduce the spread of COVID-19 — such as more protective stay-at-home orders[1]. Given the stark racial and socioeconomic disparities in health outcomes related to COVID-19 — disparities directly attributable to racism and other forms of structural discrimination — state preemption of local preventive measures is almost certain to exacerbate existing health inequities.

Subverting Local Democracy

State preemption that nullifies local decisionmaking extends far beyond stay-at-home orders. In recent years, efforts to enact preemptive bills across a range of issues have succeeded in numerous state legislatures. Preemption has been used to prevent local governments from addressing traditional public health issues by regulating the sale of tobacco products, controlling firearms, and protecting residents from pollution, among other examples. State officials have also increasingly blocked local laws and policies focused on the social and structural determinants of health, including increases in minimum wage rates, strengthening of tenant protections, expanded anti-discrimination protections, and more.

For example, in 2008, Milwaukee voters overwhelmingly approved a policy requiring employers to provide paid sick leave. Three years later, newly elected Republican governor Scott Walker and Wisconsin’s Republican-majority legislature revoked Milwaukee’s paid sick leave measure and passed a law preempting other localities from following its lead. Sixteen other states, like Wisconsin, do not have comprehensive statewide laws on paid sick leave but still preempt localities from requiring that employers provide paid sick leave. Without paid sick leave, people must choose to either forgo necessary income or endanger other people’s health by working while sick. In addition, workers without paid sick days are much more likely than those with paid sick leave to go without medical care for themselves and their families. Lack of paid sick days is also a barrier to getting preventive care, and a large portion of those without sick leave are low-wage, part-time workers — who are disproportionately Latinx or Black Americans. Alarmingly, the battle over paid sick leave in Milwaukee is one of many recent instances in which a primarily white state legislature has prevented communities of color from addressing entrenched inequities through the democratic process.

Once the current pandemic subsides and temporary federal paid sick leave benefits are exhausted or expire, the same underserved populations unfairly harmed by COVID-19 will once again face impossible choices between their health and their economic security. From an equity perspective, laws that preempt paid sick leave make it harder for workers to care for themselves and their families. Indeed, because many states prohibit localities from enacting paid sick leave laws, millions of workers — many of them from low-income communities of color — have been excluded from the opportunities and health benefits that those laws would provide.

Using Preemption for Good

While the COVID-19 pandemic highlights how the misuse of preemption has exacerbated health disparities, the pandemic also demonstrates that preemption is not inherently adversarial to public health or equity. Indeed, preemption has the power to promote fairness and equity when it is used to prevent local governments from enacting harmful policies, as they sometimes do, or to remedy the situation when local governments fail to address systemic injustices. For example, federal civil rights laws passed in the 1960s to counter government-sanctioned discrimination by states and localities were, in fact, preemption laws that established minimum nationwide protections. Those laws exemplify the use of preemption to advance equity and extend opportunity to people who were previously excluded. More recently, several states have responded to a severe and worsening housing crisis with preemption laws that prevent local governments from impeding the production of affordable housing.

In the context of the COVID-19 pandemic, targeted state preemption can help protect public health and advance health equity when local laws, government officials, or community opposition would otherwise stand in the way of an effective response by blocking testing centers or quarantine sites, for instance, or by lifting stay-at-home orders before state public health officials determine it is safe to do so. Similarly, statewide stay-at-home orders can establish baseline protections for all residents while allowing local governments to impose additional restrictions that address variations in local conditions.

Targeted state preemption can also help counter local laws that risk compounding the health, social, and economic consequences of COVID-19, many of which disproportionately affect underserved communities. For example, in another blog post, we explored how local 911 nuisance laws can exacerbate inequities through penalties such as fines or evictions — a reality that has prompted several states to preempt such nuisance laws. At a time when unprecedented financial challenges are further entrenching economic inequality and poverty, preemptive state laws that help preserve access to safe, stable, and affordable housing are more important than ever.

In summary, preemption is neither good nor evil. Preemption is merely a tool. And like any tool, its merit depends on how it is used and to what effect.

Acting Against Harmful Preemption

What can local governments, public health officials, and advocates do if the misuse of state preemption hinders their response to the COVID-19 outbreak? One option is to request immediate relief from their state’s governor; many governors can waive state laws during a declared state of emergency.

An executive order issued by California governor Gavin Newsom, for example, suspended a state law that would otherwise preempt certain types of local eviction protections. A grassroots campaign in Tennessee has called for the governor to use his emergency authority to suspend state preemption on issues such as paid sick leave, local hiring, prevailing wage requirements, protections for immigrants, voting rights, and housing security. Similar efforts are underway in other states.

In the short and medium term, even after states of emergency are lifted, stakeholders can organize and advocate for permanent changes to harmful preemption laws, including their full repeal, through state legislative action. In the long term, stakeholders can work toward broader structural reforms such as expansion of home rule authority, using the COVID-19 crisis to illustrate local governments’ crucial role as the first line of protection for public health and emphasizing the importance of empowering local governments to enact innovative public health solutions and rapidly respond to emerging threats.

Throughout these efforts, advocates and public health professionals should embrace an equity-first approach to assessing state preemption laws, evaluating them on the basis of whether they expand or curtail equity. Does the law increase or reduce opportunities for people, especially those in communities that have been politically disenfranchised and socially marginalized? Will the law help or hurt people’s ability to live healthy and productive lives? Does it rectify, create, or perpetuate an injustice?

The COVID-19 emergency reminds us that the overwhelming majority of preemption laws sweeping the country represent a coordinated assault on the political power of communities of color, low-income workers, and other structurally marginalized groups. But it is critical to recognize that inequities result from decisions at all levels of government, including local government, and to remember that in some instances, state officials are using preemption to dismantle the fundamental drivers of inequity.

As our country responds to and ultimately recovers from the COVID-19 pandemic, it’s up to government and public health decisionmakers to combat the misuse of preemption while leveraging its potential to create and protect safety and opportunity for all.

For more resources on the implications of preemption for public health, equity, and good governance, check out the Local Solutions Support Center, the National League of Cities’ report Restoring City Rights in an Era of Preemption, and the LawAtlas state preemption laws dataset. You can also access ChangeLab Solutions’ preemption resources, including our fact sheet Consequences of Preemption for Public Health & Equity, and take our training Preemption & Public Health.

[1] Although the exact scope of stay-at-home orders varies by jurisdiction, the orders generally require individuals to remain in their residence as much as possible, leaving only to engage in explicitly authorized activities such as obtaining essential supplies (eg, food and medicine).

The authors thank Benjamin D. Winig, founder and principal, ThinkForward Strategies, for his thoughtful review and feedback on earlier drafts of this post.

Please stay tuned for future installments in our COVID-19 Response & Recovery series.