Eleven months after the first pandemic lockdown, a legal tool little known to the public is limiting public health responses that affect millions of Americans. Preemption — a doctrine that allows one level of government to limit or eliminate the power of a lower level of government to regulate a specific issue — is not inherently adversarial to public health or equity, but during the COVID-19 pandemic, preemption is being used in ways that disproportionately harm the health of communities of color and people with low income.
On February 11, Sarah de Guia, CEO of ChangeLab Solutions, hosted a Twitter briefing with Kim Haddow, strategic consultant at Local Solutions Support Center, and Sabrina Adler, vice president of law at ChangeLab Solutions, who discussed how state and federal governments have used preemption to limit solutions to COVID-19 and how community advocates can respond. The discussion is part of a series, COVID-19 Law and Policy Briefings, from Public Health Law Watch.
Preemption & the Pandemic
While preemption can promote equity, Adler says, “More recently, the vast majority of state-level preemption we’re seeing is really problematic and likely to harm health and make inequities worse.” Haddow elaborates, “It’s now being used aggressively to limit local policymaking across much broader policy areas than we’ve ever seen. . . . Often this preemption is put into place by legislators who are overwhelmingly white and male, and the consequences particularly [affect] cities led by Black and brown leaders.”
“With COVID-19, we’re seeing stark racial and socioeconomic disparities which are often directly attributable to racism and structural discrimination. Preemption in that context is almost certain to make things worse.”
A Growing Culture of Punishment
The use of punishments is cropping up in lockstep with preemption of public health measures. In Georgia, the governor sued the mayor of Atlanta to prevent a mask mandate from going into effect. In Nebraska, the governor withheld COVID-19 relief funds from towns that were imposing masking or other public health rules.
Adler states, “With COVID-19, we’re seeing stark racial and socioeconomic disparities which are often directly attributable to racism and structural discrimination. Preemption in that context is almost certain to make things worse.” Texas is a key example. Adler says that Texas's governor “recently threatened to reduce Dallas’s vaccine supply if local leaders didn’t rescind the plan they’d come up with to prioritize vaccinations in predominantly communities of color.”
“It is important to remember that almost half the states have a measure before them that would restrict the ability of public health officials to take the steps that are needed to mitigate this pandemic.”
The impacts of preemption are being felt broadly. Haddow explains, “It is important to remember that almost half the states have a measure before them that would restrict the ability of public health officials to take the steps that are needed to mitigate this pandemic.” For example, in Montana, any local public health authority that issues a rule must have it approved by an elected official. “This will have a lingering effect,” adds Haddow.
Haddow suggests that for advocates and organizations, working with their congressional delegation and engaging in lobbying may help those in power understand the long-term consequences of a short-term emergency response. She highlights one shift in attitudes that is a bright spot in the preemption picture: “One thing that’s encouraging that we’re starting to see is that lawmakers recognize how important broadband and access to internet is.” While 22 states have some obstacle to municipal broadband development, the need for equal access has never been more apparent. “Look what’s happened to telemedicine during the pandemic. Even just in a public health context, [internet access] is really important.” Remote learning is another key area that has been spotlighted this year. In terms of broadband preemption, Haddow says, “These repeal efforts are really something we should be supporting.”
Watch the video: Preemption, Public Health, and Equity in the Time of COVID-19