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State Preemption of Local Government: Shutting the Door for Addressing the Future Needs of Society

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Michael Abels
January 15, 2018

A principle component of federalism is the division of powers between the federal government, states and localities. In our era of national policy paralysis, a common catchphrase has been that the most effective government is that which is closest to the people. Therefore, determined by the scale of program, and the need for equity, effectiveness and efficiency will usually be facilitated when that program is administered, and provided, by the lowest level of government possible.

Supporting this idea Benjamin Barber in “If Mayors Ruled the World”; he announced that in the future it will be cities who will be the force for social change. Bruce Katz and Jennifer Bradley add to this thesis in “The Metropolitan Revolution”. They state that many of the policy responsibilities historically found at the federal and state level of government have shifted to local governments. However, the reality of this decentralization has facilitated a conservative political backlash designed to limit local government policy innovation as part of a broader goal to “deconstruct” government. A major platform in this deconstruction effort is to stop new policy development at all levels of government (federal, state and local), especially when a policy initiative requires tax expenditures or regulation of business. I have discussed the ideological effort to “deconstruct” government in prior columns. Link 1 , Link 2

To help block local government policy development, Congress, in the recently approved tax legislation, placed a severe limitation on the federal tax deductibility of local and state taxes, and significantly reduced corporate taxes.  The reduction in corporate taxes is projected to increase the future borrowing costs of local government. The limitation on the deductibility of local taxes will erode citizen support for the tax base, and, by doing so, will deteriorate the ability of local government to maintain public support for the taxes required to fund local services. This dual pronged attack on local government may stifle the policy initiatives necessary for addressing societal needs of today, as well as those society will confront throughout the 21st century. Writing in the Washington Post, Farid Zakaria states the “medium and long-term effects of the plan will be a massive drop in public investment, which will come on the heels of decades of declining spending (as a percentage of gross domestic product) on infrastructure, scientific research, skills training and core government agencies.”

The federal tax policy and budget must be viewed in tandem with the other destructive policy initiatives that emanate from the American Legislative Council (ALC), and legislated into force by states where conservative governors and legislators are in control of the state policy process. The Tea Party wave seen in the 2011 election allowed the Republican Party to control the executive and both legislative branches in 22 states. By 2017 Republican control increased to 26 states. With this domination many of these states worked through the ALC to design legislation that would prevent more progressively oriented local governments from implementing several forms of economic and social legislation. State preemption of local government is covering a wide gamut of policy areas. These include minimum wage laws, gun safety, nutrition, anti-discrimination, smoking laws and even the regulation of pesticides and plastic.

Under our structure of federalism, the authority of the state to restrict local power to set policy is clear, and in fact, all but two states do preempt some degree of local government policy authority. However, the conservative philosophy to limit government has caused preemption to be

significantly expanded, and as stated in a 2017 report titled “City Rights in an Era of Preemption”, the National League of Cities concludes preemption limits cities from upholding the values of those living in their communities.

 

Local government is facing a two-pronged attack on its ability to address the needs and desires of its citizens. First federal tax policy is directly and negatively impacting the ability of local government to raise the revenues necessary for expanding services and funding capital investment. Secondly, many state governments are preempting local government from enacting the legislation and regulations required to meet the values and needs of citizens living in their communities.

The dual pronged attack on local government is little discussed within the field of public administration. But this conflict is real and growing. The collapse of the federal government’s capacity to identify, much less establish the policies required to meet the current and future needs of our country is clear. And, if Barber, Katz and Bradley are correct in their claim that local government must be the vehicle for initiating creative policy in the future, then state preemption of local government policy authority may be closing the only remaining door to the country’s hope for designing policy that will meet the future needs of our citizenry. The paradox that has been created should be a key subject for discussion within the field of public administration. State preemption of local government may be removing the last, best hope for the policy innovation that is essential if the United States hopes to remain an “exceptional” nation.


Author: Michael Abels, Career city manager and retired Lecturer in Public Administration, University of Central Florida. Recently published a text-workbook through Routledge Taylor & Francis Group titled Policy Making in the Public Interest: A Text and Workbook for Local Government. Author contact email is [email protected] @abelsmike

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