States and Cities Are Sometimes at Odds — But It Goes Beyond Preemption

We’ve long chronicled the trend of states preempting local governments over policy disagreements. And unlike the relationship between the states and federal government, the states created local governments, which give states the final say, legally, on how much control cities and counties have within the state. 

But recently, the long-simmering animosity between cities and states has cranked up a notch. Traditionally, state lawmakers have played a game of whack-a-mole with local governments as businesses were forced to comply with a patchwork of changing mandates across a state. A city or town would enact an ordinance and the legislature would pass a bill specifically preempting that policy. Lawmakers have been careful when drafting the preemption language. Wording that is interpreted as too broad could get thrown out by the courts, but if the preemption is drafted too narrowly, local governments could sneak through slightly modified policies. 

But the pandemic might have been a tipping point in the relationships between cities and states. In 2021, states broadly preempted local governments — and even local businesses — from mandating masks or vaccines. And last year, Florida lawmakers went after a city’s bottom line and passed a bill (FL SB 620) that would allow businesses to sue local governments if a new regulation causes a significant impact on the business. However, Governor Ron DeSantis (R) vetoed the bill, saying the legislation was both too broad (“the better approach is to enact targeted preemption legislation”) and too narrow because the bill exempted ordinances enacted under emergency orders, which were still controversial due to their widespread use during the pandemic.

Last week, the Texas House passed legislation (TX HB 2127) that takes an extremely broad approach to preemption. The bill inserts identical language into nine major statutory code areas (Agriculture, Business & Commerce, Finance, Insurance, Labor, Local Government, Natural Resources, Occupations, and Property Codes) that preempt any local ordinance “regulating conduct in a field of regulation that is occupied by a provision of this code.” Similar to the Florida bill, the Texas legislation includes a private right of action for residents and businesses to sue the local governments for enacting such ordinances. The House passed the bill on a 92-56 vote on Wednesday and it now heads to the Senate, which already introduced a companion bill. 

Now, because of the demographic makeup of cities, preemption bills inherently have a partisan tinge to them. Cities tend to enact more progressive policies than state legislatures, which represent both the urban and rural areas of a state. But even blue states won’t hesitate to play the preemption card. Last month, after a handful of counties adopted ordinances to restrict abortion access, New Mexico Gov. Michelle Lujan Grisham (D) signed into law a bill preempting local abortion restrictions. 

Beyond preemption, we’ve seen state lawmakers directly intervening in local governments’ structure and electoral systems. Last month, lawmakers in Tennessee slashed the number of Nashville’s city council members in half. On Friday, Gov. Tate Reeves (R) signed into law a bill creating a separate judicial district in Jackson, taking away the right for residents of that city to elect local judges. Late last year, Pennsylvania lawmakers tried to remove a locally-elected district attorney and Gov. DeSantis successfully removed a locally-elected prosecutor in Florida. 

There are no signs that the temperature between cities and states will cool off anytime soon. States have great legal power over local jurisdictions, so the primary mechanism that would restrain state interference in local matters is political. Yet, the number of states with one-party rule and legislative supermajorities are at record highs across the country. So unless we see a substantial reversal at the polls, this level of city vs state conflict could be the new normal.

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