States Are Abusing Preemption Powers in the Midst of a Pandemic

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At a press conference in mid-June, Nebraska Governor Pete Ricketts encouraged residents to wear masks. But he would stop short of requiring them. In fact, not only would the state reject a mandated mask requirement, Ricketts said he would withhold federal dollars for coronavirus from any local government that imposed its own mask requirement. 

Nebraska’s is an extreme example, but it is not an isolated one. Around the same time, several other states including Texas, Florida, and Arizona said they would block local mask requirements, before eventually ceding to demands and reversing their positions. And in North Carolina, if the state legislature doesn’t act, wearing masks will actually become illegal in the state on Aug. 1, setting up one of the most dramatic tensions with the policies of cities such as Durham, where masks are required in some public spaces.

These moves are all part of a long-term trend of state governments overriding local control. Governors and state legislatures have used heavy-handed tactics for years to take away the authority of city leaders to pass laws their constituents want and need. But during this pandemic, we have seen some of the most egregious examples in recent history.

Since March, officials in some states have placed barriers in the path of city leaders who have tried to pass science-based public health provisions to protect their residents. In the beginning stages of Covid-19’s spread, it was stay-at-home orders, which multiple states were either slow to implement or chose to never implement at all.

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Fortunately in some of those states that forewent or delayed stay-at-home orders, local officials were allowed to implement their own. Unfortunately, many of these officials were prohibited by their governors from passing stay-at-home orders that were more stringent than their states’. Sometimes, this behavior started as threats from the state government, such as in Mississippi and South Carolina, which caused confusion and harmed efforts to flatten the curve, but in other instances it was more explicit preemption and took away cities’ autonomy to protect their people.  

Compounding these challenges, cities in many states were left without options for paid sick leave because of past preemption efforts. According to research by the National League of Cities, where I lead the Center for City Solutions, 20 states have preempted paid sick leave policies, with nine states allowing no paid leave laws at all and the other 11 only allowing a statewide policy to be in effect. Employees who were sick with coronavirus or had sick family members had to keep working since there was no way to stay home and still receive a paycheck — until the federal government eventually stepped in to provide Covid-19-related paid sick leave for up to two weeks. 

When it came to reopening, cities faced similar challenges, as numerous states lifted restrictions around Memorial Day — and some earlier — even as city leaders pleaded for exceptions that more closely followed public health guidance. In Georgia, communities throughout the state asked the governor for the ability to stay closed longer when the state became the first in the nation to reopen, but were rebuffed. In Tennessee, the four largest cities were not allowed to institute their own plans for reopening restaurants. Unfortunately, these types of decisions can now be viewed in the context of their outcomes. As the US Covid-19 caseload spikes to the highest numbers yet (nearly 45,000 on June 26), it is particularly acute in many of those states that opened early. Florida, as an example, had a record-breaking 8,942 cases reported on the 26th. The facts on the ground are beginning to prevail and influence decision-making. 

Cities have long been preempted on a range of important local decisions, including increasing minimum wages, the regulation of short-term rentals and protecting people from gun violence. Every single one of these policies is critical. But with lives on the line during a pandemic, one might have expected that officials wouldn’t play politics with public health.   

The recent decisions to cede to local decision-making and allow mask requirements by the governors of Texas, Florida and Arizona illustrate the futility of trying to fight a virus with this kind of politics rather than sound policy. But even as these state leaders allow limited authority to localities to pass mask ordinances, caveats abound. In Texas, mandates can only be placed on local businesses, not when people are in public spaces, and the consequences of violating any such mandates are limited to a fine. All of these state leaders have publicly declared that they will not reimpose restrictions nor allow local leaders to do so — even if some have made slight adjustments like curbing alcohol sales and pausing further stages of openings. 

It should be noted that these states are exceptions and not the rule. In many states, the governors and legislatures have worked with local governments. In the Washington, D.C. region, the governors of Maryland and Virginia allowed local communities to have phased reopenings that accorded with the facts on the ground, and led to longer-term orders only being lifted once the curves were flattened in Northern Virginia and suburban Maryland counties as a result. 

Even in North Carolina, where an effort to alter an old law that would actually make masks illegal was blocked by Republican lawmakers, the state’s policies thus far have not barred local action. North Carolina’s state law explicitly set a “floor” or minimum standard that allowed local leaders to tailor policies to their communities. This is the kind of flexibility that allows city leaders to make the choices that are needed for the varied on-the-ground conditions we see in cities nationwide.

State leaders should create a supportive environment that helps city leaders save lives — those are the very real stakes at play here. While everyone is committed to doing what we can to restart the economy and help it thrive, at the end of the day local leaders want to protect the health and general welfare of all of us. Let’s help them do just that.

Brooks Rainwater is the senior executive and director of the National League of Cities' Center for City Solutions.

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