Dissent, Litigation & Defiance: Local Leaders Resist Abusive Preemption
The Local Solutions Support Center is excited to announce our new blog series featuring our 2022 Research Cohort. Each month, a member of our Research Cohort will explore a different topic and its connection to preemption. Here, Professor Lori Riverstone-Newell kicks things off by examining three different strategies local leaders have relied upon to resist abusive state preemption: dissent, litigation, and defiance.
Advocates, journalists, and academics have chronicled the “attack on American cities,”¹ particularly the rising use of state preemption by conservative leaders, the influence of free-market and industry groups such as ALEC, and the resulting inability of local leaders to meet local needs and demands.² Over the last decade, states have used preemption and other centralizing tools “not for the purposes of adopting statewide policies to providing regulatory baselines,” as state leaders often claim, “but merely to strip local governments of the power to act, leaving no regulatory structure in place.”³ Thus, in the name of personal responsibility, individual freedom, the free market, and partisanship, many states are preventing local leaders from protecting workers, low-income families, public health, the environment, among others, while failing to do so themselves.
“In the name of personal responsibility, individual freedom, the free market, and partisanship, many states are preventing local leaders from protecting workers, low-income families, public health, the environment, among others, while failing to do so themselves. What is a locality to do?”
What is a locality to do? To be sure, many local leaders have chosen to wait it out, saying little and foregoing new policies so as not to draw attention or invite new or greater constraints. Others, however, are challenging their states, pushing back against what they perceive to be state overreach. In recent years, these challenges have generally fallen into three categories: dissent, litigation, and defiance.
Dissent.
Engaging the media is the most common way that local leaders push back against unfavorable state actions. In voicing their opposition, local leaders are attempting to educate the public about the importance of a pressing issue and their limited ability to address it. They hope to enlist the public’s help in pressuring the state for policy change. At the very least, their efforts to inform the public may provide political cover to local leaders who anticipate negative consequences due to state action or inaction.
Many local leaders challenged their states’ response to the pandemic, and sometimes with good effect. For example, in Arizona, after Governor Ducey’s March 2020 executive order prohibited localities from issuing local stay-home orders or closing businesses deemed “essential,” including “golf courses, pawnshops, and payday lenders,” nine mayors appealed to the media and wrote to the governor, “fervently” calling for a state-wide order. Ducey “capitulated” a week later in the face of a “mounting grassroots effort.”⁴
With less success, after Georgia’s governor reopened the state’s beaches and preempted local officials from instating their own closures, Tybee Island’s mayor wrote, “As the Pentagon ordered 100,000 body bags to store the corpses of Americans killed by the Coronavirus, Governor Brian Kemp dictated that Georgia beaches must reopen, and declared any decision makers who refused to follow these orders would face prison and/or fines.”⁵ The state’s reopening continued, despite rising infection and death rates, appeals from health care workers, schools, and mayors from across the state.⁶
Kansas City Mayor Quinton Lucas contested Missouri’s preemption of local handgun regulation, claiming that it was leading to “genocide in the streets of America.” The mayor said, “All right, the Second Amendment exists, but by God… [l]et us keep guns out of the hands of domestic abusers and minors. Let us track stolen guns. State law at every turn has preempted our ability to take action."⁷
Litigation.
Local leaders have challenged their states in the courts with some success. After the 2018 mass shooting at a Parkland high school killed 17 people, the Florida public demanded that local leaders ensure citizen compliance with background checks and waiting periods to purchase guns, among other safety measures. Local leaders, however, were preempted from such actions in 1987. Moreover, the 1987 preemption law was buttressed in 2011 with the addition of harsh penalties. Local leaders who defy the law are subject to personal fines and removal from office. In addition, individuals and organizations are allowed to sue defiant local leaders and can be awarded up to $100,000 and attorney fees.
In 2019, facing public pressure to act, over 30 cities, 3 counties, and more than 70 local officials sued the state to remove the 2011 penalties. (Without the penalties, local officials might strategically defy state preemption to invite litigation and a chance to defeat their state in court.) They won their bid at the circuit level. The state appealed and that court found in favor of “the superior authority” of the state, allowing for the penalties to persist. The FL Supreme Court will hear the case in June 2022.
During the pandemic, several Florida school districts sued the state over its ban on mask mandates, a case they lost in 2021. The battle had taken place over the course of several months during which some of the districts lost hundreds of thousands of dollars in funding.⁸ In a similar case brought by Arkansas parents, the state’s mask mandate preemption was found unconstitutional. Within days of the court’s determination, over 60 schools enacted masking mandates, protecting half of the state’s children.⁹
“The attack on localities in recent years goes on and, as a result, the power and autonomy necessary to respond to local demands is becoming increasingly constrained. America’s local governments are limited in their ability to resist state overreach.”
While localities may go it alone or partner with one another in these cases, advocacy groups may also join, or lead, the effort, as with a recent challenge to a California law that preempted the passage of new local sugary drink taxes. Localities defying this preemption would forfeit their sales tax revenue which, in some cases, amounted to about a third of their revenue stream. A coalition of advocates and a private citizen challenged the penalty provision and won in superior court. An appeal is underway.¹⁰ Win or lose, it is worth noting that advocacy groups can help local litigation efforts by deferring costs and providing expertise. They can also take the heat when local officials wish to challenge their states but cannot risk state reprisals to themselves or their locality.
Defiance.
Usually a last resort, cases of outright defiance of state preemption rose during the pandemic. Many local leaders continued efforts to control infection rates despite state preemption. For example, in January, eleven school districts continued to mandate masks after the Missouri Attorney General, Eric Schmitt, ordered them to stop. In response, Schmitt, along with several parents, sued the school districts.¹¹ The AG’s office dropped these lawsuits in March, claiming victory that the school districts – and 31 others across the state – had backed down under the pressure of litigation, “a major victory for students and parents.”¹²
Localities also circumvented state directives by acting in the “gray areas” of higher law “wherein local activity was not anticipated, and so it is not expressly preempted.” Oklahoma City Public Schools required masking despite state preemption.¹³ The superintendent explained to parents that the state law prohibited the school board from mandating masks, but “the law does not prohibit the Superintendent and district administration for requiring the wearing of masks by our students, staff, and visitors.”¹⁴ Similarly, Paris Independent School District in Texas changed its dress code to include masks, claiming that the governor has no authority over “the Board of Trustees’ exclusive power and duty to govern and oversee the management of public schools of this district.”¹⁵
In 2019, Alachua County (FL) officials raised the legal age to buy tobacco to 21 and set up a sting operation to enforce compliance. Recently preempted from tobacco sales-related inspection and enforcement, the county commissioner dissented: “The state wants to collect tax revenue from tobacco retailers, so they don’t really have any incentive to up the penalties and take away… licenses.” Not giving in, the commissioner plans to provide grant funding to a non-profit to renew sting operations. Violators cannot be punished under the state law, but a list of businesses will be published, using shaming as a deterrent.
The attack on localities in recent years goes on and, as a result, the power and autonomy necessary to respond to local demands is becoming increasingly constrained. America’s local governments are limited in their ability to resist state overreach. In the best cases, local leaders can plead their case to state leaders who, hearing them, make considered decisions regarding what is best for the people. Advocacy groups often play a critical role in achieving this outcome. In the worst cases, state leaders are unwilling to listen and even debase local leaders in the media, threaten them with penalties or further preemption, or pass debilitating preemption laws such as those discussed here. Despite all of this, many local leaders continue to resist state preemption, defending against state attacks in the face of threats and the very real risk of reprisals, and sometimes to good effect.