As Michelle Wilde Anderson notes, when a local government sets out to address a problem like access to safe, affordable housing, it first must ask what it has the legal authority to do. Indeed, “local control” — the idea that local governments should have more autonomy — has become a national buzzword, appearing with increasing frequency in both academic scholarship and popular media.
The debate over local control looms large in the housing world.
The debate over local control looms large in the housing world. Kansas recently passed legislation prohibiting communities from requiring proactive rental inspections and from enacting inclusionary zoning laws. Texas now prohibits local laws protecting individuals from housing discrimination based on the individual’s source of income, which could be federal housing assistance. And a whopping 26 states prohibit local governments from enacting rent control laws.
These laws rely on the legal doctrine of “preemption,” which provides that a higher level of government may limit, or even eliminate, the power of a lower level of government to regulate a certain issue. Under the U.S. Constitution’s Supremacy Clause, federal law governs over state or local law; if a state or local law conflicts with a federal law, the federal law prevails. Similarly, if a city council passes a law that conflicts with a state law, the state law trumps the local law.
While preemption is often portrayed as a complex legal matter, at its core, it is mostly a question of policy and political judgment.
Preemption takes many forms, and it is not inherently partisan or universally negative. For example, floor preemption can ensure everyone enjoys the benefits of a law while preserving local authority to provide additional protections. Laws such as the federal Fair Housing Act help advance equity by establishing baseline protections that apply nationwide.
While preemption is often portrayed as a complex legal matter, at its core, it is mostly a question of policy and political judgment. As legal scholar and Columbia Law School professor Olatunde Johnson recently observed, “moves [to preempt local regulation] … may reflect legitimate concern about which level of government is best suited to enact policies… But many of these moves at the state level to preempt local power seem motivated by ideological or practical opposition to specific measures.”
This tug-of-war over the distribution of power among federal, state, and local governments is nothing new, but recent years have seen a significant increase in state efforts to preempt local communities from addressing all sorts of issues. According to one report, more than half of state legislatures considered public health–related preemption bills in 2015. And voter initiatives and legislative enactments, often fueled by animus toward minority populations, have prevented communities from addressing issues like housing discrimination and insufficient wages.
North Carolina’s now infamous House Bill 2 (the “bathroom bill”) sought to prohibit local governments from enacting antidiscrimination protections. And in Alabama, on the heels of an ordinance enacted by the City of Birmingham — where African Americans make up nearly 75% of the population — the state legislature passed HB 174, a bill prohibiting localities from establishing laws related to employee wages, benefits, and work schedules — all without a single vote from African American state legislators. Many view this as simply another example of Alabama lawmakers manipulating state political and legal processes to disenfranchise African American communities.
It is worth remembering that the mechanisms many cities now rely on for local innovation are vestiges of strategies to combat reconstruction and civil rights.
Cities and counties are fighting this growing trend toward state usurpation of their regulatory authority. In 2016, housing advocates successfully lobbied for legislation in Oregon, partially repealing state preemption of local inclusionary zoning laws. Jurisdictions, residents, and advocates, such as the NAACP and ACLU, brought legal challenges against both North Carolina’s HB2 and Alabama’s HB 174. They argued, among other things, that the laws unconstitutionally deprive minority communities of their ability to enact beneficial legislation.
These fights against state preemption help local governments working to improve the health of their residents. However, it is worth remembering that the mechanisms many cities now rely on for local innovation are vestiges of strategies to combat reconstruction and civil rights. When the federal government moved toward proactive policies to address and undo segregation, particularly in the context of housing (through congressional legislation such as the Fair Housing Act of 1968) and education (through Supreme Court rulings such as Brown vs. Board of Education), resistance was organized around state’s rights and local control.
Today, local lawmakers and advocates have joined together to promote grassroots resistance to state preemption. As Michelle Wilde Anderson rightly states, fighting preemption bills that harm public health and equity takes “concerted advocacy and public pressure.” For many progressive hubs in conservative states, these fights over local control are vital to preserving local governments that are representative of and responsive to their community’s values, needs, and priorities. And for those concerned with advancing policies that safeguard and support affordable housing, joining forces with a broad coalition of health and equity stakeholders could ensure that preemption doesn’t stand in the way of local innovation.
Ben Winig, JD, MPA, is Vice President of Law & Policy at ChangeLab Solutions. He manages a team of lawyers and oversees legal and policy interventions aimed at improving public health and advancing health equity.
Derek Carr, JD, is a staff attorney at ChangeLab Solutions who works on issues related to air quality, healthy housing, tobacco control, healthy eating, and active living.
