Protecting Local Authority in State Constitutions and Challenging Intrastate Preemption

Abstract

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering. Preemption may be a feature of our governing system, but it has also become a problematic political tool state legislatures use to block the will of local governments. This Note discusses the role of cities and localities within the American republican system and proposes new ways to address preemption based on a commitment to local governing autonomy, also known as home rule. State constitutions and the guidelines courts use to interpret state constitutions offer an opportunity to improve and secure the relationship between state and local governments. The first Part of this Note addresses theories of local power, the second Part surveys a broad range of sources and examples to understand the scope of state preemption of local action, and the third Part critiques proposals to address preemption while offering new ideas to further that effort focused on amending state constitutions. Finally, the Appendix contains an original qualitative analysis of states’ constitutional home rule provisions and statutes.