State Government Preemption of Local Government Decisions Through the State Courts

By Jeffrey Swanson (Florida State University) and Charles Barrilleaux (Florida State University)

Why do state governments preempt local government policies? Devolution is often embraced as a normatively desirable policy goal, as it expands local autonomy and allows for policies to be tailor-made to the needs of a sub-unit’s constituents. Although decentralization has been at the forefront of the states’ rights movement, there has been limited state-level support for decentralization to the local-level. States have granted local governments some autonomy through home rule and enabling legislation but doing so involves a trade-off between the efficiency of internal policy production and potential delegation costs. Disputes between local and state governments are likely to occur when local residents have ideological preferences that differ from those of state officials. This is because local governments are more likely to implement policies that contradict state interests, but the ability for local governments to engage in policy making depends on the level of local autonomy given by the state government. The preemption process is a way for state governments to limit local autonomy, either through statute or in state courts through legal challenges of local ordinances.

The most common way local ordinances are preempted is through state courts, where an affected third-party can challenge the legality of the ordinance. The claim that is often raised by the plaintiff is that the ordinance conflicts with a state law and is invalid. Once a third-party interest files a suit against a local government’s ordinance, the court must decide whether the local government has violated state law. Court rulings can favor either the local government or the third-party interest. Therefore, our research concerns understanding what factors increase the likelihood that a local government will have an ordinance rendered invalid.

If an ordinance is more likely to be challenged because of policy disputes, then why should local autonomy matter? A judge’s decision to preempt an ordinance depends upon the type of authority granted by the state to its local governments. For home rule states this depends on the degree of autonomy delegated by the state government. When an ordinance is challenged, a state court must determine whether the ordinance violates one of the following: a) whether a statute exists that excludes local involvement in a specific area, b) whether the legislature meant to regulate the field, or c) whether the matter is strictly of state concern. Ruling an ordinance as preempted is easy for courts when the policy can be labeled as a state matter but becomes more difficult in areas under blended control. This leads us to expect autonomy to condition the difference in ideological preferences between the state and local governments.

In our research, we generated an original dataset containing information collected from legal cases where a state preemption ruling was decided between the years 1995 and 2017. The rulings of state courts on preemption suits serve as a method for studying local governments that have enacted incongruent policies. We constructed an ideological difference measure from Shor and McCarty’s (2011) state legislator ideal points. Specifically, we measure the absolute difference between the median legislator value for all districts within a local government and the median legislator score of the lower house for the state in the year the ordinance was adopted.  Although this difference in preferences may not figure in the judgment ruling by the court, it should help distinguish local government policies that are challenged but legal from those that are preempted and rendered invalid.  We use a local autonomy measure taken from Wolman et al. (2010), which is based on the home rule categories described in Krane, Rigos, and Hill (2001) and Richardson, Gough, and Puentes’s (2003) classifications of Dillon’s Rule states.

Are local governments that hold ideological views that differ from the state more likely to have an ordinance preempted? Although we expected ideological distance to be an important factor, we find that there is no relationship. Also, we found that a preemption ruling is more likely to occur as local autonomy increases and there is no ideological difference between state and local governments. These two results demonstrate the complexity of the preemption process because when judges are deliberating the legality of a local ordinance they do consider the autonomy granted to local governments by the state. What happens then to local governments that hold opposing preferences, but have some level of autonomy?  We expect states that delegate more authority would see more preemption rulings when local governments hold opposing views, but we found the opposite result. At low levels of autonomy, courts are more likely to rule an ordinance as preempted. This is likely a result of courts overruling local governments that have overstepped their delegated  functions. On the other hand, we found that when the state government granted a high degree of autonomy a local government was less likely to have an ordinance ruled as preempted in state courts. The results hold even when there is a wide difference in ideological views between the local and state government.

Our results highlight the potential problem political polarization can cause in state-local relations. If local governments are to serve as extensions of laboratories of democracy, preemptions can only serve to restrict local authority by limiting the ability of local governments to provide essential services to residents. State governments can end up losing vital sources of political capital if they decide to engage in confrontation with local governments who happen to have different ideological viewpoints. Institutions can offer a glimmer of hope because an increase in local autonomy, such as home rule can protect local governments from an erosion of authority to conduct local policies. However, additional research should be conducted to understand what factors would drive a state legislature to limit local control through a state statute. Our research is one attempt at disentangling our knowledge of state-local relations, but we focus on factors related to the court’s decision to preempt an ordinance. It is therefore worth noting that future investigations can help us understand the role of state legislatures in the preemption process.

Read the article here.

Photo by Josh Wilburne on Unsplash

Author Biographies

Jeffrey Swanson is a doctoral candidate in Political Science at Florida State University. His most recent published work is “Case Management for High Risk, High Cost Patients: Delegation or Abdication” with Bill Weissert appearing in Medical Care Research and Review. Linkedin:

Charles Barrilleaux is the Leroy Collins Professor and Department Chair in Political Science at Florida State University. He is coauthor of Democratic Policymaking (Cambridge University Press, 2017) with Chris Reenock and Mark Souva.

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