NLC REPORT: Exploring State Interference Before, During, and After the Crisis

National League of Cities

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

The COVID-19 pandemic has fundamentally altered daily life, brought the economy to a screeching halt, and has challenged every level of government.

Cities, towns, and villages not only face challenges confronting the virus, but in confronting state interference in their response as state preemption has severely limited or outright prevented local leaders from implementing the policies their communities need.

Preemption has a long and complex history. It has been used to set minimum standards to protect people, but it has also been used to prevent cities from implementing tailored policies to serve their residents. This paper explores how the preemption doctrine has been used before and during the crisis to limit how municipalities were, or were not, able to respond. This paper also explores where cities and states have been able to work together; what the future may hold in the face of a continuing crisis; and options for cities to address this state interference in a proactive way.

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What is Preemption?

Preemption is when a higher level of government removes or limits the authority of a lower level of government. The impact on people’s well-being, health, and economic situation can be severe. During the COVID-19 pandemic, for example, states preempted local governments from being able to enact mask mandates, meaning local leaders could not make mask-wearing mandatory in their local communities. At times, these states were not implementing any sort of mandate at the state level. Preemption is neither inherently good nor bad. Preemption can be used to set minimum standards or can be used in policy areas that should be left to the state. The misuse and abuse of preemption, however, represents state interference, where the higher level of government unnecessarily constrains the actions of local leaders. For instance, states implementing emergency orders during the pandemic to close businesses to prevent the spread of the virus across the state.