Three Strategies to Restore City Rights in an Era of Preemption

December 13, 2019 - (3 min read)

From negatively impacting zoning and tax laws, to making it impossible for local governments to raise the minimum wage or mandate sick leave, state interference — or preemption — can have dire consequences for our communities.

The evolution of preemption—from a pragmatic tool to resolve conflicts in law to a weapon used to limit local democracy—is clearly eroding city rights and demands a strong response from local elected leaders.

As cities prepare for 2020 legislative sessions, the lessons of 2019 cannot be forgotten. This year alone, states adopted at least 30 new preemption laws across 15 policy areas, according to a report from the Local Solutions Support Center.

Local leaders can combat this growing state interference. According to the National League of Cities’ new municipal action guide, cities have three strategies they can employ to fight preemption: communicating the problem, building coalitions with new partners and pursuing legal challenges as necessary.

Communicating the Problem

When talking about preemption, there are a few do’s and don’ts. According to polling and focus group testing, cities, towns and villages should talk about “local democracy” and “local decision-making.” They should also communicate about the “misuse and/or abuse” of preemption. However, it’s important not to make preemption a partisan issue — it affects all political parties.

And don’t accept the argument that state preemption is necessary to avoid a patchwork of local laws. Everyday, businesses engage with different city standards, health regulations and tax rates. Sometimes states want to argue against local laws, calling for a “one size fits all” approach, but they end up creating “vacuum preemption,” where the state blocks local action but set no statewide standard.

Messaging Do's and Don'ts

Building a Coalition

Turning a local preemption communications strategy into a campaign requires building a coalition. Preemption is a major issue for a wide range of groups, as it cuts across policy areas and priorities. It is important for groups who may be focused on specific policy areas, such as minimum wage or plastic bag bans, to join forces with local governments when every group involved cares about the city’s ability to enact a policy generally.

For instance, LOCAL Maryland contains groups as diverse as Sugar Free Kids and the National Employment Law Project. These groups and others joined together after realizing they were all advocating for local decision-making, but just in different spaces. By joining forces, and identifying their unifying principles, they were able to successfully keep preemption from being included in a bill raising the minimum wage in 2019.

Pursuing Litigation

Finally, cities can turn to the courts. For instance, after Pittsburgh’s paid sick leave ordinance was preempted by the state in 2015, the city took the case to court. While the appeals process at first did not favor the city’s arguments, the Pennsylvania Supreme Court ruled for the city. The court recognized Pittsburgh’s municipal power and restored the paid leave ordinance for nearly 50,000 lower-income workers.

Our hope is that by reversing the current trends, cities can get back to doing what they do best: listening and responding to the concerns and challenges of their residents and experimenting with policies and practices to solve them.


Spencer-Wagner-small.jpgAbout the author: Spencer Wagner is a Local Democracy Associate with NLC’s Local Democracy Initiative. His research focuses on state preemption of local policy and its impacts.