Preemption, Federalism, and Local DemocracyFordham Urban Law Journal (2017)
Throughout the country, city residents are coming to the uncomfortable realization that they have no right to local democracy. In just the past few years, state legislatures have blocked local governments from enacting all kinds of legislation, including ordinances dealing with smoking, hydraulic fracturing, the minimum wage, gun control, nutrition, civil rights, immigration, plastic bags, and more. The sheer volume of local enactments being “preempted” by state legislation has reached nearly epidemic proportions. One watchdog organization reported that 2015 was the most popular year for preemption in American history, with 29 states considering comprehensive bills to preempt all manner of local legislation.
Though it is hardly unprecedented for states to preempt local legislation, the breadth and ambition of the recent preemption efforts have rarely been seen in American history. They are the result of a profound political realignment within many states that is having reverberations throughout our democratic system and undermining many assumptions about the nature of our democracy. Preemption has become more prevalent because cities are now overwhelmingly Democratic while state legislatures, dominated by representatives of rural areas, are overwhelmingly Republican. The vertical relationship between cities and states is now an outlet for a partisan conflict between rural and urban areas, of which preemption is one manifestation.
This paper uses the lens of preemption to examine the broader political trends it exemplifies and gauge the capacity of our democratic institutions to withstand them. I argue that the nearly perfect alignment of geographic divisions with partisan affiliations has raised the stakes of political conflict between cities and states and opened up important questions about the future of liberal democracy. The “Madisonian” vision of a democratic society characterized by ever-shifting coalitions has been threatened as heightened partisanship, geographic segregation, and the cultural and economic impacts of globalization have hardened the division between urban Democrats and rural Republicans into a zero-sum conflict between competing social groups. Preemption is one front in this conflict, as rural Republicans seek to negate the cultural and economic gains they see urban Democrats making at their own expense. A possible route out of this conflict is federalism, which has long been a tool for accommodating the competing claims of different groups within the framework of the nation-state. However, intrastate federalism has always been weak because courts are wary of recognizing group rights at the sub-state level. The current rash of preemption is a direct result. Although I conclude that a stronger intrastate federalism may be necessary in an age of deepening urban/rural conflict, I also doubt that we can count on the judiciary to save us from this predicament. Ultimately, the citizenry must decide how much it values local democracy.
Citation InformationKenneth A. Stahl, Preemption, Federalism, and Local Democracy, __ Fordham Urb. L.J. __ (forthcoming).