PHOTO ILLUSTRATION BY EMILY SCHERER / GETTY IMAGES
In the second half of 2021, housing prices rose faster in Florida than in any other state. In some cities, rents soared by as much as 30 percent that summer. This put an enormous strain on families living in Florida and already struggling to pay rent, especially those who worked in the tourism industry for moderate wages, many of whom lost income during lockdowns of 2020. Evictions began to rise after a pandemic-related moratorium ended that summer.
Cynthia Laurent, a housing justice coordinator for the political advocacy group Florida Rising, said she heard from people struggling all over the state. In response, her organization worked with others to launch a campaign for rent-stabilization laws in the most affected cities. In Orange County, which includes Orlando, voters passed a referendum to establish rent stabilization for certain apartments for one year, keeping residents in place while the markets adjusted and families found stable footing. For many, this is exactly how local government is supposed to work: A need arises, and people put pressure on local officials or vote to change their local laws. “I believe it was the most popular item on the ballot,” Laurent said. “It wasn’t Democrat or Republican, folks from all walks of life, party, class voted yes for rent stabilization.”
But Orange County’s rent-stabilization ordinance will likely never go into effect, thanks to preemption — a type of law that lets states stop cities from setting their own agendas.
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, 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.
The shift began during President Barack Obama’s presidency. He often struggled to advance progressive goals in Congress, and Republicans made electoral gains in statehouses around the country. Partisanship also became more clearly geographical: More urban populations became more solidly Democratic than ever, while rural areas became even more Republican. With progressive priorities blocked at the state and federal levels, more liberal-leaning cities began passing ordinances on issues like gun control, higher minimum wages, sick leave and LGBTQ rights. “Urban areas can’t go to the legislature to get their voice heard,” Jocelyn Johnston, a professor at American University’s School of Public Affairs, told Pew in 2015. “so they’re going to do something in-house. That’s why this is happening. Most state legislatures are not as liberal as urban interests are.”
What’s happening now is a pushback from conservative organizations and red-state legislatures. “[A]ctivists have begun targeting local governments to create big government policy that could not survive at the state capitol,” said a 2015 op-ed in RedState, arguing states should pass preemption laws to protect businesses from excessive regulation in these cities. And by that point, states were already doing just that. A 2020 Economic Policy Institute analysis found the use of preemption was more prevalent in southern states.
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.
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 week would 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.
In many cases, these preemption laws were in direct response to cities’ actions. After widespread protests against police departments in the summer of 2020, states began preempting reforms or budget cuts to local police departments, with the governors of Florida and Georgia signing laws forbidding it.
Preemption laws keep expanding into new topic areas as well. 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. Some of the biggest battles seem to be over LGBTQ rights and abortion, which fits a pattern, said Marissa Roy, head of the legal team at LSSC. She’s seen such bills originate with organizations like American Legislative Exchange Council and other think tanks. But preemption laws are also inspired by whatever culture wars are raging. “Pretty much any trends that you could note coming out in [the Conservative Political Action Conference] or on Fox News … you see them show up in preemption,” she said.
On abortion, the battle has turned to preempting local district attorneys from deciding how to use prosecutorial discretion. After the Supreme Court eliminated the constitutional right to abortion last summer, red states ramped up efforts to strictly limit the procedure, but some district attorneys in more urban, liberal areas pushed back, vowing not to prioritize enforcing those new laws. In Texas, lawmakers have introduced bills in the state House and Senate that would essentially require prosecutors to enforce all state laws or face penalties. Florida and Georgia are further enforcing preemption laws by penalizing local officials who don’t follow them. Florida Gov. Ron DeSantis suspended a Tampa-area state attorney after the attorney pledged not to enforce the state’s new abortion law, and DeSantis may suspend another one over a similar matter of enforcing state law. And the Georgia legislature is considering creating a commission with the power to remove prosecutors who “categorically” refuse to prosecute offenses that state law requires the prosecution of.
But local prosecutors have long had the discretion to set their own priorities, said Richard Briffault, a professor at Columbia University and an expert on preemption. “The state is saying, ‘No, you can’t do that for the hot-button issues that the state’s interested in,’” he said. “But at some point, they’re going to have to set priorities because they almost never are going to have the resources to prosecute everything, let alone the fact that some of these issues really do fly in the face of strong local preferences.”
It’s hard for cities to block these moves. Many state constitutions would come down on the side of the state, Roy said. According to her, reforms rooted in the 19th century gave local governments more authority than they’d had, but also allowed for state preemption. “The idea was that states would use preemption wisely to only ensure consistency where statewide consistency was needed,” Roy said. “Now, we’ve seen this abuse of preemption … and that is the exception that state legislatures have taken advantage of.”
Preemption of preemptions would need to come from changes to the state constitutions, or to fight for authority in new, specific policy areas, Baker-Smith said. And Roy added that maybe states could change some of these laws through ballot initiatives or the legislatures themselves, which she believed they’re unlikely to do. In Oklahoma, two Democrats in the state House of Representatives have introduced two separate pieces of legislation to repeal some of the state’s preemption laws, but they face an uphill battle in the Republican-dominated Legislature.
The reality is that in the U.S. today, cities are more likely to be Democratic and progressive, even when they’re in red states. When they pass more liberal laws, it can be too tempting of a target for Republicans in the state’s legislature. “They can strongly come out, whether it’s in their campaigns or whatever the case may be, and say, ‘Oh, I was against raising the minimum wage. And here’s how I stopped it,’ or, ‘Here’s how I stopped drag shows in our community,’” said Oklahoma Rep. Cyndi Munson, a Democrat who introduced one of the bills.
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.”