Paul A. Diller*, The Political Process of Preemption, 54 U. Rich. L. Rev. 343 (2020).

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Preemption, particularly of the state-city variety, has become a hot topic. State legislatures in many states over the last decade have preempted a wide swath of areas in which cities and counties were previously free to govern. In addition to the sweeping nature and frequency of preemption, the increasingly aggressive methods of enforcing preemption have drawn notice. The threat of fiscal penalties, removal of local officials from office, and even criminal sanctions constitute what one scholar has dubbed the phenomenon of “hyper preemption.”

There are several reasons why this new landscape of preemption is of concern. Advocates of local control lament the loss of cities’ ability to use their local expertise to solve local problems. Relatedly, fans of local innovation fear that aggressive preemption limits the ability of cities to try out new policy proposals that might work their way up the state or federal ladder. The specter of personal penalties for city councilors who support preempted ordinances may dissuade citizens from running for local elected office, a crucial training ground for state and federal positions and an intrinsically important component of our democratic system. Even if not punitive, sweeping substantive preemption may weaken cities so much that voters and potential elected officials have less interest in participating in city governance. Finally, due to the political valence of much of the recent preemption—by more conservative state legislatures preempting the policy priorities of populous, politically liberal cities—political progressives see preemption as an attack on their values and priorities.

Because of the issue-based nature of preemption, it is tempting to approach the subject in a results-based manner. Political progressives, for instance, may oppose preemption of local firearm regulation, but cheer preemption of local ordinances that crack down on illegal immigration. Conversely, political conservatives bemoan preemption of local “right-to-work” ordinances, but support preemption of the minimum wage. Courts and legal scholars have struggled for years to offer a neutral way out of this morass.

For decades some scholars and courts have argued that a neutral way of determining the legitimacy of statewide preemption is by focusing on whether the particular issue in play is “local” or not. Many scholars and judges, however, have rightly criticized this approach as intellectually unsatisfying. Another view, recently offered in a brilliant essay by Nestor Davidson, is that courts might find their way out of the results-based morass by homing in on whether the preemptive legislation furthers the “general welfare” of the state. This approach is attractive, particularly with respect to deregulatory preemption. Employing it may still, however, require courts to make policy-based determinations regarding whether a state or local choice furthers the general welfare.

This Article suggests a different path out of the morass by inviting scrutiny of the political process of preemption. Focusing on state rather than federal preemption, this Article assumes—without endorsing—the primacy of the state over its political subdivisions, a view embraced by the Supreme Court in the seminal 1907 case of Hunter v. City of Pittsburgh and beyond. While making this assumption, this Article nonetheless critically examines it by digging deeper into the roots of state sovereignty and the state’s claim to dominion over its subentities.

At the time of the Founding, states were seen as sovereign due to their representation of “the people.” Building off of this conception of state sovereignty, the Court in Hunter recognized plenary state power over cities—or local “agencies”—as the Court referred to them. Fifty-seven years later, in Reynolds v. Sims, the Court recognized one-person, one-vote as a key component of representation, embracing the idea that the state legislature ought to be responsive to the policy preferences of a majority of the state’s voters. After Reynolds, the Court continued to reaffirm Hunter’s notion of state primacy without explicitly re-examining the premises of this assumption. After Reynolds, however, state primacy and the majoritarianism of state government had become fused, and rightly so. Only a democratically legitimate state government—that is, one which purported to represent credibly a majority of the state’s population—could justifiably exercise its plenary powers over the democratic subunits within it.

Working from these premises, this Article argues that when state preemption is the product of a credibly majoritarian lawmaking process, it might be considered less objectionable, regardless of its political valence. A key component of democratic illegitimacy, this Article will argue, is intentional political gerrymandering. Such gerrymandering distorts the legislature’s composition and leads to legislative products that do not accurately reflect the views of the median voter statewide. When produced by other processes, such as direct democracy, preemption may reflect the majority’s will in some crude sense, but may raise other normative concerns.

Before proceeding, it is useful to clarify what this Article means by preemption. This Article uses the word broadly to include any override of pre-existing local power or prerogative by statute or constitutional amendment. Such preemption may impose a new regulatory regime from above, displacing the locality’s previously governing regime, or it may impose a regulatory regime when none such existed previously at the local level. As used here, preemption may also simply deprive the locality of the authority to implement a regulatory regime or fiscal choice, such as its preferred level of taxation, without providing any new regime or supplementary revenue in its place. Almost all of the preemption discussed here is of the general type—i.e., not special legislation that formally applies only to one city or a handful of cities—but the framework of the analysis should apply similarly to special preemption.

Part I of this Article examines the roots of the state’s role as sovereign, and how the democratic legitimacy of the state legislature eventually became linked to a notion of majoritarianism, as epitomized by Reynolds. Part II discusses how and why gerrymandering and political geography may cause a legislature to stray from majoritarianism. Part II examines this phenomenon in the context of state-local relations, in particular. Part II includes vignettes of some key states where gerrymandering has arguably led to unrepresentative preemption in approximately the last decade. Part III looks at how the initiative process differs from the legislative process in the context of preemption. Nothing is more seemingly majoritarian than the voters enacting a policy preference by a majority vote. Nonetheless, direct democracy raises distinct problems of democratic legitimacy, which Part III assesses in the context of state-local relations. Finally, Part IV looks at some other factors in prominent preemption instances of late, including legislative “horse trading” and punitive enforcement mechanisms, and asks what these dynamics reveal about the legitimacy of state overrides.

 

* Professor of Law, Willamette University College of Law, Salem, Oregon. J.D., University of Michigan. B.S., B.A.S., University of Pennsylvania. The author thanks Jessica Bulman-Pozen, Nestor Davidson, Christopher Elmendorf, Richard Schragger, Ken Stahl, and many others for insightful comments on earlier drafts. The author also thanks Mary Rumsey, Research Librarian at Willamette, and Mick Harris, law student, for outstanding research assistance.

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