Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
Mixed messages on the legal concept of preemption are confusing cities that want to pass stronger Covid-19 actions, like closed beaches and shelter in place.
As coronavirus took hold across the U.S. in mid-March, images of beaches packed with spring breakers became a symbol of government inaction. Some cities closed their own beaches and issued stay-at-home orders, but Florida Governor Ron DeSantis at first declined to take similar steps statewide. On April 1, he relented in the face of criticism and issued an order that asked people to limit movement outside their homes to “essential trips.”
But an amended version of that order also did something else: It called into question several stricter stay-at-home orders already passed at the local level.
The long-running saga on state preemption powers — the ability of state governments to override laws passed by cities — often accelerates during moments of disaster. After several mass shootings, some states have blocked cities that wanted to curb gun use. In the wake of catastrophic weather events, states clamped down on cities that tried to ban fracking and curb the burning of fossil fuels.
In the face of coronavirus threats, some states have attempted to clamp down on city measures to keep residents sheltered and businesses closed. But so far in this epidemic, states have been sowing confusion not just by exerting their power to obstruct local action. They’ve also sent mixed messages that leave local governments unsure whether their own measures are valid — or for how long.
In the case of Florida, the cause of confusion was a provision in the state law that specifically said it superseded “conflicting local provisions.” One local mayor, Mike Ryan of Weston, told the Sun-Sentinel he believed there was “no way to read the order” other than preempting his own city’s measures, prompting fear of legal action. But as Politico reports, when he and his fellow mayors asked the governor to clarify, DeSantis said the order doesn’t preempt local measures. The issue remains unresolved.
An even more forceful warning was issued by Mississippi’s Governor Tate Reeves: In an executive order that placed statewide restrictions on some businesses, the governor specifically preempted any social-distancing restrictions or guidelines passed by local jurisdictions. Many cities already had stricter rules in place, especially along the Gulf Coast, causing local leaders to scramble.
But perhaps the political pressure of a pandemic that is now undeniably spreading throughout the U.S. caused Reeves to change his tune. Days after Reeves’ initial announcement about preemption, he issued a second order clarifying what he meant to say the first time: Indeed, local governments could go further to enforce social distancing, as leaders in Biloxi, Ocean Springs, Jackson, and other cities had already done. For the state, it’s something of a retreat from the position that Reeves took when he said, with a Trumpian flourish, that “Mississippi’s never going to be China.”
You’ll notice that this is mostly happening in the South, but not exclusively. In Massachusetts, Boston is fighting to halt construction of non-essential buildings to limit the spread of the virus, while the state has ordered all construction to proceed.
States have been dropping the preemption gauntlet on cities for decades, and at least since 2011, red states have been using this power far more frequently, and punitively for cities than ever before, according to a report released last year by the Local Solutions Support Center and the State Innovation Exchange.
“We have seen a steep increase in the use of states deliberately limiting or eliminating the power of cities to pass policies that they think will help improve the lives of their people,” says Kim Haddow, executive director of LSSC. It’s not just emergency coronavirus measures that are affected. Other safety-net measures that would help a particularly large number of residents have been blocked in many states. According to the LSSC report, 23 states have banned local paid sick leave ordinances and 31 states bar cities from passing rent-control policies.
Texas is one example of this. It passed a statewide order on April 2, only after Dallas and Austin pressed heavily for weeks, but Dallas still can’t enforce a paid sick leave ordinance that was supposed to kick in on April 1 (and that would cover different people than the temporary federal sick leave measure).
“What’s very clear to us in this pandemic is that if you look at cities who wanted to pass paid sick days, or new broadband policy, or affordable housing, or minimum wage policies, those are the policies that are preempted the most,” said Haddow. “And yet as you look at this crisis, those are the policies that are most needed right now.”
Throughout the first half of the 20th century, cities created and pushed for legal documents that assert local powers, known as home rule charters, in part to protect them from overbearing state policies, but those instruments haven’t been updated since 1953 and “are no longer up to the task of meeting the challenges we face in the 21st century,” reads a report produced by LSSC and the National League of Cities in February.
For example, Tybee Island, a coastal city in Georgia with its own home rule charter, closed its beaches on March 20 to prevent spreading coronavirus. But on April 2, Georgia Governor Brian Kemp ordered all beaches back open, against the wishes of Tybee Island and other coastal cities.
In South Carolina, it was an ask from a state lawmaker for legal advice that disconcerted city leaders. Greenville Mayor Knox White had been preparing with the city council to pass an emergency stay-at-home order last month, when a legal memo from the attorney general said that cities do not have the legal authority to do that. According to Attorney General Alan Wilson’s memo to the state legislator, not only does the state exclusively hold that power, but a private citizen could sue cities that had passed those ordinances. The memo caused some places like Folly Beach to temporarily rescind measures they had already passed and plead for the governor to take statewide action, according to the Greenville News.
But asked for clarity, the attorney general said the memo was only an advisory opinion, not a legally binding order. And there are no clear plans for now to enforce its legal interpretation. With South Carolina still holding out on a statewide order to shelter in place or close private businesses, Greenville revived its plan and joined several other major South Carolina cities in passing an emergency stay-at-home order — at least until another action from the state raises new questions.
With reporting by Kriston Capps.