Connecting state and local government leaders
The number of states passing laws superseding city ordinances is on the rise, spurred by industry lobbying and single-party dominance of legislatures.
Local governments are increasingly experiencing aggressive state preemption of their jurisdictional authority, particularly when concentrated state political power conflicts with the prevailing party in city halls.
According to the “City Rights in an Era of Preemption” report released by the nonpartisan National League of Cities, North Carolina offers the most extreme cases—preempting localities on tax and expenditure limitations, municipal broadband, ride-sharing, anti-discrimination, paid leave and minimum wage ordinances.
Of the seven policy areas examined, home sharing was the sole issue not preempted by state lawmakers in Raleigh, and only Connecticut and Vermont avoided preempting cities on any.
“When states seek blanket policies counter to the needs of their cities, local leaders do not stand down,” Brooks Rainwater, NLC Center for City Solutions’ director and the report’s co-author, said on a Wednesday conference call.
Such policies are “counterproductive and even dangerous” when they create “perilous environments,” Rainwater added, and the process of municipal innovation “percolating upward” shouldn’t be stymied.
After North Carolina, the biggest state “preempters” are Tennessee, Wisconsin, Michigan, Louisiana and Florida, according to the report:
"As preemption efforts often concern a politically divisive issue, they rely on single party dominance to pass through state legislatures. As of the 2016 election cycle, Republicans have twenty-five government trifectas, meaning they control both legislative chambers and the governor’s office. Democrats have trifectas in six states, but control a larger portion of city halls. Several states where there has been single-party control over the last decade, including Georgia, Michigan, North Carolina, Ohio and Wisconsin, have seen increases in preemption.”
States generally fall into one of two categories when it comes to granting cities authority in their constitutions. Dillon’s rule states, named after an 1868 court ruling, deny power to localities unless explicitly conferred. Home rule states, rejecting the rigidity of the ruling starting in the early 1900s, limit their interference in city affairs and regularly redefine the relationship in their courts. Occasionally, Dillon’s rule states like New York and Maryland afford home rule to larger cities like New York City and Baltimore.
When Ohio, a home rule state, preempted a 12-year-old Cleveland ordinance requiring 4 percent of construction work to be performed by low-income residents, a judge permanently blocked the new law barring cities from establishing local hiring regulations. Cleveland wasn’t as fortunate when Ohio preempted its gun ordinance in 2010, reversing home rule authority and preventing communities from tailoring firearm regulations to local conditions, said Matt Zone, a Cleveland city councilman and NLC’s president.
“The residents that we all serve want to see progress in the cities and communities that we represent,” Zone said.
NLC’s stance is preemption represents a loss of control for cities and the citizens who elect local leaders.
Currently 24 states preempt local minimum wage ordinances to some degree, according to the report, with North Carolina and Alabama doing so in 2016.
More than 20 cities approved paid sick leave ordinances last year, but 17 states preempt such laws.
Three states—North Carolina, Tennessee and Arkansas—passed explicit preemption of local anti-discrimination ordinances protecting employee use of public facilities and commercial activities.
Thirty-seven states preempt cities from regulating ride-sharing services like Uber and Lyft as they see fit, and three states—New York, Florida and Arizona—preempt home sharing.
There’s a “disturbing trend” of legislation being introduced on behalf of an industry to exempt them from local authority, said Kim Winn, the Virginia Municipal League’s executive director.
Uber and Lyft successfully lobbied Virginia legislators to exempt them from local rules governing taxi services, but Airbnb and HomeAway haven’t had the same luck securing exemptions from local zoning and land-use regulations.
Many lawmakers didn’t fully understand the ramifications of such exemptions before they were explained, Winn said, but the VML successfully stopped bills providing them back-to-back years by allying themselves with the hotel industry—one tactic for opposing preemption.
“Cities should choose preemption battles wisely,” Rainwater said because they don't want to have their authority limited unnecessarily.
Communicating with state legislators to minimize the negative effects of preemption can encourage economic development and avoid wasting political capital, according to the report.
Increased city authority has many state governments fearful, but the North Carolina League of Municipalities has worked to address that narrative by showing cities are the leading economic drivers of development.
Seventeen states have preempted municipalities from establishing public broadband services, and there’s been an uptick in the number of these cases and others to do with preemption being decided by the Federal Communications Commission or in the courts.
Forty-two states have enacted some sort of tax and expenditure limitation on cities: nine a less binding property tax limit, 26 one that’s potentially binding and seven one that’s binding with a general limit.
Preemption policy areas not addressed in NLC’s report include local plastic bag bans, firearm bans and sanctuary city statuses.
In the case of cities refusing to hand over undocumented immigrants for deportation, Zone said that doesn’t mean they’re not routinely cooperating with the federal government or building constructive relationships with their communities to improve public safety.
“It’s the opinion of our organization that there appears to be a false assumption sanctuary cities prevent [U.S. Immigration and Customs Enforcement] ICE agents from enforcing immigration law,” Zone said.
Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.