Excerpted From: Kathleen Morris, Rebel Cities, Bully States: A New Preemption Doctrine for an Anti-Racist, Pro-Democracy Localism, 65 Howard Law Journal 225 (Winter 2021) (198 Footnotes) (Full Document)


KathleenSMorrisConflicts between state and local governments are not new, but they have risen sharply in recent years. The nation is experiencing a frequently racialized and anti-democratic preemption crisis. Political interest groups serving a conservative, anti-regulatory policy agenda have worked for years to gerrymander state legislative districts so that representatives of rural white voters would have more voting power than representatives of multiracial city voters. Having done so, the affected state legislatures are more frequently leveraging preemption doctrine to block and syphon power from city governments.

In the past, state-local preemption was seen as technical and apolitical, but in recent years it has become a hot topic among scholars and journalists due to changes in how some states are using it. At one time, states employed their preemption powers relatively sparingly, leaving cities and other local governments to regulate and operate as they saw fit. When state and local laws overlapped, and it was unclear whether the former preempted the latter, the parties or a court would quietly resolve the issue.

The days of sparing preemption are long gone. Today, state-local preemption is not only common, but frequently racialized and politicized. States are more often using preemption to score political points against the urban majority. Moreover, in addition to regular conflict preemption, states are using more extreme tools scholars have termed “nuclear” and “punitive” preemption to chill and eliminate local laws and policies. In sum, many states are leveraging preemptive law to allow a majority white minority to overpower a multi-racial majority. The preemption crisis is rightly viewed as one component of the racialized anti-democratic fervor sweeping the Republican party.

This Article joins the call for the nation's state courts to redraw the balance of power between cities and states. This Article proposes an entirely novel, detailed and comprehensive doctrine for state-local preemption. It contrasts and furthers existing scholarship by categorizing local action by government tool rather than by topic and proposes a three-part doctrine to address state-local preemption. This Article explains that cities and other localities act by using two categories of legal authority: regulatory and non-regulatory authority. A city exercises regulatory authority when it orders private persons or entities to do something. It exercises non-regulatory authority when it uses a government tool other than direct regulation to further a policy interest. There are twelve non-regulatory government tools. They are: (1) contracts with private entities; (2) contracts with other public entities; (3) litigation; (4) taxing and spending; (5) eminent domain; (6) divestment; (7) self-management (8) passive non-compliance; (9) domestic political organizing; (10) international engagement; (11) lobbying; and (12) speech.

This Article proposes a novel approach to preemption law, one whose main goals are to lessen structural racism and improve multipart democratic functioning. The new doctrine would create three categories of preemption and apply three different balancing tests. The first very strict test would apply to, and invalidate most, “nuclear” and “punitive” preemption of local acts. The second test would apply to preemption of “non-regulatory” local acts. The third test would apply to preemption of “regulatory” local acts. The proposed preemption analysis would proceed as follows:

Step One (identify “nuclear” and “punitive” preemption): Determine whether the challenged state statute constitutes either “nuclear” or “punitive” preemption. If so, it is presumptively invalid. It will only be upheld if it is necessary to achieve an important state objective that cannot be achieved through a non-punitive or more narrowly tailored approach.

Two (divide regulatory from non-regulatory exercises of local government power): Determine whether the challenged state statute preempts a local act of regulatory or non-regulatory power. This replaces the topic-based approach to sorting state-local preemption disputes with a tools-based approach.

Step Three: Apply the relevant balancing tests for regulatory and non-regulatory exercises of local power, requiring the state to produce evidence at summary judgment or at trial satisfying each prong of the applicable test.

Test for state preemption of local regulations: A state law will preempt a local regulation if the state government can establish, by a preponderance of the evidence, that: (1) the state law furthers an important policy objective that outweighs the democratic interests in local self-government; and (2) the local law disrupts that objective or achieving that objective requires statewide uniformity of law.

Test for state preemption of non-regulatory exercises of local power: State legislatures are presumed to lack the authority to preempt non-regulatory exercises of local power. A state law will only preempt a non-regulatory act of local power if the state can establish, by clear and convincing evidence, that: (1) the state law furthers an important policy objective that outweighs the democratic interests in local self-government; and (2) the local law disrupts that objective or achieving that objective requires statewide uniformity of law.

The new preemption doctrine proposed here would improve upon the current doctrine in five respects. First, it would all-but eliminate the most extreme forms of preemption: nuclear and punitive. Second, it would eliminate the failed approach of using topics as a fulcrum for analysis, substituting a more logical tools-of-government approach. Third, it would employ balancing tests rather than bright line rules, which would permit the fifty states to import policy objectives in the course of analysis. Fourth, it softens the current doctrine's structural racism by forcing states and cities to justify their positions in open court. Fifth, support democratic values by takin a thoughtful approach to state-local power-sharing instead of falling back on an antidemocratic might-makes-right approach. Courts would permit preemption whenever states could establish that important bona fide statewide policy considerations outweighed bona fide local considerations.

This Article does not assume, as legal scholars sometimes do, that local governments are intrinsically more likely to be inept, parochial, corrupt, or racist than the state and federal governments, and thus preemption law must somehow account for these peculiarly local weaknesses. In 2017, the late political theorist Benjamin Barber observed that city governments throughout the world have become or are becoming more sophisticated and forward-looking than national governments. This article assumes that all levels of government are potentially prone to corruption, racism, and other governmental evils, and that the work of preemption doctrine is to force states and cities to debate their conflicts by presenting facts in open court.

This Article does assume that meaningful judicial oversight is both possible and advisable. Localities can and do seek to increase their power via what have been termed “political safeguards,” but political safeguards have not resolved the preemption crisis. If courts move away from categorizing state and local action by topic and towards categorizing it by tool, and develop balancing tests that are fine-tuned and flexible enough to capture the democratic and substantive values in play for each state, they would be more useful at brokering conflicts between states and constitutional home rule localities.

The current reckoning with racist and anti-democratic forces in American political life presents an opportunity for state courts to reconsider how best to resolve state-local conflict. This Article explains how they can do so, and proceeds in three parts. Part I summarizes the political and demographic changes and conflicts driving the current crisis in preemption, and the courts' current failed approach to addressing those conflicts. Part II categorizes state-local disputes by government tool as opposed to topic, and explains the problem with current preemption law. Part III proposes a new preemption doctrine to help resolve the current crisis.

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This Article's proposal for a new preemption doctrine admittedly faces two major hurdles. The first hurdle is theoretical, and the second is constitutional. First, any approach to preemption that shifts power from state to local governments necessarily cuts against the dominant “powerless subdivisions” theory of local government law. Second, any such approach is likewise arguably inconsistent with the current, weak conception of constitutional home rule. Yet these objections should not encourage courts and scholars to stick with the current anti-democratic, structurally racist approach to preemption. Instead, these objections should encourage courts and scholars to develop approaches to localism theory and home rule that are fully consistent with an antiracist, pro-democracy preemption doctrine.

Professor of Law, Golden Gate University School of Law.