By Jessica Amoroso and Sarah Winston
States across the U.S. are using preemption to stifle local authority aimed at mitigating the spread of COVID-19, resulting in confusion and a fragmented response.
Historically, local governments have played an important role in providing direct and indirect services to their communities, as they have a heightened awareness of their needs compared to state governments. This has proven especially true during the COVID-19 pandemic, as city and municipal initiatives often have been the initial access point for virus-related services.
But state preemption is increasingly being used as a legal tool to prevent cities and municipalities from legislating on issues of importance to public health.
Grounded in the U.S. Constitution’s Supremacy Clause, preemption establishes that federal law supersedes state law, and state law supersedes city and municipal law. The most prominent examples of preemption during the COVID-19 pandemic involve policies around paid leave, the minimum wage, anti-discrimination laws, and housing.
For example, as of July 1, 2020, 23 states had preempted local governments from regulating paid sick leave, with 12 of these states in a regulatory vacuum – leaving residents without local paid leave laws.
Arizona and Kansas are examples of how these regulatory vacuums – where a state chooses not to enact a particular mitigation law (e.g., stay-at home order), and also issues a separate law banning cities from doing so (e.g., enacting stay-at-home ordinances) – are occurring throughout the pandemic via preemption. As of July 1, 2020, neither state had a stay-at-home mandate, but both had simultaneously preempted cities from instituting stay-at-home orders in their localities.
In contrast, Maryland took a more expansive and community-based approach by creating a regulatory floor for county leaders to take further actions in addition to the stay-at-home order.
Some states have taken action to mitigate the spread of COVID-19, such as through gathering bans, mask requirements, restaurant capacity limits, and non-essential business closures, but have left certain gaps in their responses.
For example, as of July 1, 2020, 18 states explicitly preempted local regulation of social distancing mitigation efforts, creating a patchwork of guidance. Some states have gone further by using their governing power to sue or to threaten suit of local officials or municipalities if they enacted a mitigation policy. Georgia’s governor sued Atlanta’s mayor to invalidate a city-wide mask mandate (ordered eight days earlier) amid an increase in coronavirus cases in Atlanta. Other governance conflicts occurred in Iowa (over mask mandates) and Texas (over mask mandates, sheltering in place, and religious services).
Local action can also be useful when intrastate conflict exists, as was the case in Pennsylvania where the Governor’s decision to close all but life-sustaining businesses in April 2020 was challenged by a state legislative candidate.
The varied state and local pandemic response around the country has been compounded by the federal response, which was slow to develop – creating further fragmentation.
The federal response has consisted almost wholly of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which provided $2 trillion in direct aid to individuals and businesses, $150 billion of which was delegated to relief funds to assist state, local, and tribal governments.
It is estimated that state governments received about $110 billion of the total allocation, while local governments received approximately $29 million. Only local governments with populations greater than 500,000 residents were eligible for funding, meaning cities in just 16 states received the allocation. This is particularly problematic for states that preempted cities from issuing laws aimed to protect health, including COVID-19 mitigation measures, leaving these cities without federal funding or local public health measures to protect their citizens.
Although federal paid leave measures, such as the Families First Coronavirus Response Act (FFCRA), were passed during the pandemic, they were done so on an emergency basis, and upon the FFCRA’s expiration on December 31, 2020, these paid leave policy vacuums will remain.
As the pandemic worsens, it further exacerbates pre-existing health disparities experienced by communities of color, individuals with low-income, and people susceptible to the virus due to health ailments. At this time it is more vital than ever for localities to regulate in a detailed and community-based fashion – a level of nuance that states, at times, fail to reach.
Cities and counties have the opportunity to enact protective laws and policies aimed at reducing the damaging effects of COVID-19, as experienced by local communities. Particularly vital, cities can tailor this effort to reduce health, racial, and socioeconomic disparities exacerbated by this virus to render more socially equitable public health measures. However, this local ability continues to be diminished by state preemption. The law, along with community efforts, are supposed to be tools used to advance public health, but they can only work if the toolbox remains open for all.
View the State Preemption Laws dataset at LawAtlas.org, which was created by the Center for Public Health Law Research and the National League of Cities, with support from the Robert Wood Johnson Foundation.
Jessica Amoroso, Esq., is an attorney in Philadelphia, and former Law and Policy Analyst at the Center for Public Health Law Research.
Sarah Winston is a JD/MPH Candidate at Temple University Beasley School of Law and Temple College of Public Health.