State Preemption of Local Authority: Explaining Patterns of State

Boise State University Boise State University

ScholarWorks ScholarWorks

Public Policy and Administration Faculty

Publications and Presentations

Department of Public Policy and Administration

Summer 2019

State Preemption of Local Authority: Explaining Patterns of State State Preemption of Local Authority: Explaining Patterns of State

Adoption of Preemption Measures Adoption of Preemption Measures

Luke Fowler

Boise State University

Stephanie L. Witt

Boise State University

This is a pre-copyedited, author-produced PDF of an article accepted for publication in

Publius: The Journal of

Federalism

following peer review. The version of record:

Fowler, L. & Witt, S.L. (2019). State Preemption of Local Authority: Explaining Patterns of State Adoption of

Preemption Measures.

Publius: The Journal of Federalism, 49

(3), 540-559.

is available online at doi: 10.1093/publius/pjz011

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

State Preemption of Local Authority:

Explaining Patterns of State Adoption of Preemption Measures

Luke Fowler

Associate Professor and MPA Director

School of Public Service

Boise State University

lukefowler@boisestate.edu

Stephanie L. Witt

Professor

School of Public Service

Boise State University

[email protected]u

Abstract

State preemption of local policymaking has attracted increasing attention from scholars, public

officials, and citizens, as states have prevented local governments from boosting the minimum

wage, regulating firearms, and barring certain forms of discrimination, among other policies.

Although scholars have examined the legal dimensions of state preemption and analyzed

preemption in specific areas, we lack a comprehensive account of which states have adopted

preemption laws and why some states are more active than others in adopting them. Using a

dataset drawing on preemption legislation in seventeen policy areas, we test support for

competing explanations for variation in adoption of state preemption measures. Our general

conclusion is that political factors are more significant than institutional features in explaining

state preemption activity. More specifically, and consistent with expectations, we find

preemption measures are more likely to be adopted by Republican-controlled states. We also

find that legislative professionalism, political culture, and home-rule status are correlated with

the prevalence of preemption measures.

Recently, state preemption of local policies has attracted attention from journalists, federalism scholars, and groups

interested in specific policy areas impacted by preemption (Greenblatt 2015, 2016; Mosher 2017; Riverstone-Newell

2017; Berman 2018). In the most basic sense, preemption occurs when higher-level governments pass laws restricting

the policy authority of lower-level governments (DuPuis, Langan, McFarland, Panettieri, and Rainwater 2017). Most

commonly, scholars view this from a federal-state perspective, whereby Congress limits the policy discretion of state

governments (e.g., Rabe 2008; SoRelle and Walker 2016). In recent decades, however, states have increasingly passed

laws reining in innovative local governments (Riverstone-Newell 2017). For instance, in the first few months of 2019,

legislation was introduced to prevent local gun registries in South Dakota (Sneve 2019), local bans on plastic bags in

Oklahoma (Burke 2019), and local regulation of vacation rentals and plastic straw bans in Florida (Haughey 2019;

Grimm 2019). Also in 2019, the New Mexico legislature adopted a law preempting local governments from enacting

right-to-work ordinances (Associated Press 2019). These recent instances of proposed and enacted preemption laws

are a continuation of trends from 2018 when states such as Minnesota and Texas saw a deluge of preemption bills

introduced as part of a widespread effort to assert state dominion over local governments (Jayson 2018; Nelson 2018).

Although there is a fairly well-developed body of literature that approaches preemption from a legal perspective,

research from social science perspectives, especially political science and public administration, is limited (Buzbee

2008; Riverstone-Newell 2017; Hicks et al. 2018). As local governments are becoming more important players in the

U.S. federal system (Feiock and Scholtz 2009; Langan and McFarland 2017; Briffault 2018; Phillips 2018), this has

prompted new and interesting research questions concerning the distribution of authority between state and local

governments and which level of government should wield policymaking power. Existing scholarship on state

preemption tends to focus on specific policy areas (e.g., firearm limitations, minimum wage requirements, and labor

policies) or on single states. From these studies, scholars have gleaned insights into the influence of lobbying groups

(Hertel-Fernandez 2014; Garrett and Jansa 2015; Riverstone-Newell 2017; Van Wilpert 2017); the role of model

statutes in influencing legislative behavior (Hertel-Fernandez 2014); state legislators’ interest in opposing progressive

ordinances passed by liberal cities (Greenblatt 2015); and the role of litigation and ballot initiatives as mechanisms to

settle state-local conflicts (Rodd 2018).

We turn in this article to explain why some states adopt preemption laws more frequently than other states, which is

a question that has been considered in other studies but has not yet been the subject of a systematic analysis.

Riverstone-Newell (2017), in a prior contribution to the Publius Annual Review of American Federalism issue, argued

that when conservatives dominate state legislatures, they are more likely to use preemption against liberal, progressive

cities, but that local officials do not always comply with these laws and sometimes challenge them in court. This

suggests a level of complexity in preemption activity that single policy area or single state studies have yet to capture.

In light of this, our goal in this article is to identify which states are adopting preemption laws most frequently and

consider explanations for variation in state preemption activity.

We first provide a brief discussion of key challenges researchers face when examining state preemption of local

authorities, and identify seventeen policy areas in which preemption has been a particularly important issue in recent

years. Second, we investigate why certain states are using preemption measures with particular frequency. Our

conclusions indicate that political factors are more significant than institutional features in explaining preemption

activity, but further research is necessary in order to better understand the relationship between preemption and

distributions of state and local authorities, as well as its underlying antecedents.

Identifying State Preemption Measures

As scholars working in this area can attest, it can be difficult to determine which states have preempted the same

activities or when preemption occurred, thereby creating a fundamental challenge for researchers (DuPuis, Langan,

McFarland, Panettieri, and Rainwater 2017; Schragger 2017). In many cases, the legal bases of preemption are

unclear, and mechanisms of enforcement can range from statutes, to crossover sanctions threatening revenue streams,

and even to legal penalties for local officials violating preemption. Furthermore, some states have adopted multiple

pieces of legislation that preempt local ordinances in the same area, which adds further complication (Schragger 2017).

For example, several states, including Iowa, Louisiana, and Utah, appear to have adopted two firearms preemption

statutes at different points in time (Giffords Law Center 2017). Scholars also encounter challenges in sorting through

explicit preemption (i.e., when states explicitly reserve a given function for themselves) and implicit preemption (i.e.,

when state laws so completely controls a function that there is no room for local authorities) (Buzbee 2008).

Additionally, preemption may only apply to parts of a policy area, which further complicates inter-state comparisons.

For instance, preemption of local ordinances addressing tobacco use among youth are somewhat common. However,

some states only preempt ordinances related to advertising, while others preempt ordinances related to sales (Gorovitz,

Mosher, and Pertschuk 1998). Furthermore, while states may preempt similar local activities, they may also apply

somewhat different stipulations, which can alter the specific restrictions imposed. For example, twenty-six states

preempt local ordinances to set housing prices altogether, but Texas’s rent control preemption law provides a loophole

that allows local governments to enact rent control ordinances if there is a housing emergency (Schragger 2017).

Consequently, researchers run into the challenge of determining if all types of preemption activity are the same, or at

least, if they can be reasonably grouped together for purposes of analysis.

Given these issues, we developed a two-step methodology to systematically identify and classify state restrictions on

local authorities. First, we collected data from three recent studies conducted by non-profit organizations with an

interest in state and local policy issues: 1) a 2017 report from the National League of Cities (NLC) based on data

collected from secondary sources and a survey of state municipal leagues (DuPuis, Langan, McFarland, Panettieri,

and Rainwater 2017); 2) a 2017 report from a joint project between A Better Balance and the Urban Law Center at

Fordham University based on a legal analysis of a variety of progressive policy areas impacted by preemption

(Schragger 2017); and, 3) a continuous effort by Grassroots Change to track state preemption actions on a set of public

health-related policies (Grassroots Change 2018).

Second, we reviewed studies and identified policy subjects in which we could confirm findings either by an

independent source or where study findings were well-documented enough that we could independently review the

data. Then, we eliminated any policy categories in which there were inconsistencies between sources (or where

inconsistencies could not be easily rectified) or in which we could not confirm the data. In other words, we confirmed

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

the identification and classification of state preemption policies used in these studies by either relying on other sources

or reviewing data and determining if we could justifiably c

determination regarding a state’s preemption status for a

specific policy subject, then it is reasonable to classify a state accordingly.

Based on this research, we identified seventeen usable categories of preemption subjects. These categories include a

wide range of environmental, economic, social, and public health issues. Although this is not an exhaustive list and

some areas of preemption are not included, there is a relatively high level of agreement concerning the status of states

adopted preemption laws in regards to these subjects, which we believe mitigates some data reliability concerns.

It should be noted that the studies used as the basis of data collection for this article identify approximately twenty-

three additional subjects of preemption policies (although that number depends on how policies are defined). These

include policies related to tax and/or expenditures limitations, tobacco (excluding smoke-free policies), climate

change, education, contracting and/or employment practices, anti-discrimination (excluding creating new protected

classes), immigration, and campaign finance. As noted above, a key problem that emerged is a vague definition of

what is included in several of these categories; therefore, sources may have conflicted or it was difficult to verify

findings. For instance, preemption of tobacco may include a range of policies regarding sales, marketing, and/or

advertising of cigarettes, smokeless tobacco, or e-cigarettes. On the other hand, climate change preemption legislation

restricts local governments from taking climate change into account, but what exactly that means or how it is

articulated by local authorities is unclear. Additionally, there is a significant degree of nuance in preemption of tax

and/or expenditure limitations and contracting and/or employment practices that make it difficult to make inter-state

comparisons in these areas.

For various reasons, therefore, we focus for purposes of this article on preemption laws in areas where we have a

reasonable degree of confidence about which states have adopted such measures and in a way that permits cross-state

comparisons. The seventeen subject areas that we examine represent approximately half of the preempted subjects

identified by leading studies, which we believe is sufficient to draw conclusions concerning overall preemption

patterns.

States and Preemption

Table 1 lists the seventeen subjects of preemption that we identified, arranged in order of frequency of adoption and

based on laws adopted as of 2017. On average, 17.9 states preempt local authority for each policy subject, with

firearms restrictions being the most common (forty-three states), and anti-discrimination and fracking prohibitions

being the least common (three states in each area). This list includes several issues with long legacies of policy

debates, such as firearms, which first became the subject of preemption regulations several decades ago. Nevertheless,

this list also includes other issues that have emerged more recently, such as the sharing economy and anti-

discrimination (Greenblatt 2016). In general, there is a rather diverse set of policy issues that states have addressed

via preemption laws, but these seventeen areas are the most commonly and thoroughly documented. Table 2 lists the

number of preemption subjects by state, and Figure 1 maps the distribution across states. On average, states preempted

6.1 subjects, with Hawaii and New York preempting the fewest policies (one subject) and Florida, Tennessee, and

Wisconsin preempting the most policies (twelve subjects).

[Insert Table 1 here]

[Insert Table 2 here]

[Insert Figure 1 here]

Explanations

Previous scholarship suggests several explanations for why certain states are more active than others in preempting

local authority. The most basic and prominent explanation is related to the legal structure of state-local government

relations and whether states operate under Dillon’s Rule or Home Rule. In the former, states grant local governments

authority in a piecemeal fashion and thereby create narrow spheres of local policy discretion. In the latter, local

governments are semi-independent and enjoy broad policy discretion, although states can still use their superiority to

rein in local authority (Krane, Rigos, and Hill 2011; Richardson 2011; Swindell, Stenberg, and Svara 2017).

Consequently, states under Dillon’s Rule doctrines can largely dictate the extent of local authority, which would

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

generally make passage of preemption laws a superfluous action. On the other hand, Home Rule states generally must

take action in order to limit local government action in certain policy areas, which would make preemption a key tool

for states in managing state-local relations.

A second potential factor contributing to state-local conflict and leading to passage of preemption laws focuses on the

balancing act between urban and rural areas. More specifically, state legislatures grapple with competing demands

from urban and rural areas, leading to interesting power dynamics as states try to create (or claim to create) regulatory

consistency (Williamson 2009; Stahl 2017). That is, policy challenges are different in large metropolitan cities than

in smaller, less densely populated communities and can generate a variety of local regulatory approaches that create a

patchwork of policy. In such a situation, state lawmakers may respond to pressure from constituents in rural areas

who perceive a threat to cultural norms by enacting laws barring cities from regulating certain activities. On the other

hand, constituents in cities may see behavior in rural areas as out of step with emerging norms and pressure lawmakers

to centralize policy-making and abolish certain practices. As such, when there is a high degree of urban-rural conflict,

state legislatures may need to create regulatory consistency as a compromise between the two sides.

A third explanation that is garnering increasing attention from scholars is that Republican-controlled states use

preemption to stop liberal cities from adopting progressive policies. That is, municipal governments in a number of

states are enacting progressive policies, which has put pressure on states to either adopt their own progressive policies

or to preserve existing political and institutional patterns. For states choosing the latter option, preemption is a key

tool to stifle local innovation and maintain state power. In other words, as states are being pushed by local

governments, they are responding by curtailing local authorities in the hopes that it will stop (or at least slow) adoption

of progressive policies. As such, preemption may just be another tactic in partisan conflict (Einstein and Glick 2017;

Riverstone-Newell 2017). Texas serves as a prime example of this, where Republicans have controlled the state

senate, house, and governor since 2000 (NCSL 2019). However, the cities of Austin, Dallas, Houston, El Paso, and

San Antonio are largely Democratic strongholds, and adopt progressive policies in response to citizen demands (Myer

2013; Fisk 2016). Consequently, the Texas legislature has taken up an agenda of preemption in recent years in order

to rein in these cities (Jayson 2018). To the extent that this pattern of conservative legislative responses to progressive

local innovation is replicated in other states, we would expect preemption activity to be correlated with Republican

strength in the state legislature (Riverstone-Newell 2017).

Fourth, because not all state legislatures have the same capacity for effective and responsive policymaking, some

legislatures may be willing to allow local governments to take on the challenge of addressing policy isses in order to

shift responsibility (Volden 2005). In general, citizen legislatures have few career politicians, whose primary focus

is policymaking from which they have developed expertise and who have full-time staffs that research, negotiate, and

write legislation. On the other hand, professional legislators have more time, resources, and expertise to dedicate to

policy development, which makes them less reliant on external policy actors (e.g., local governments). Additionally,

as full-time politicians, professional legislators are more acutely aware of political competition and its potential to

undermine their power (Rosenthal 2001; Gray, Cluverius, Harden, Shor, and Lowery 2015). As such, professional

legislatures may be less willing to allow local governments to venture into new policy areas and choose instead to

centralize control. Conversely, citizen legislatures may be more willing to allow local governments to experiment

with new policies in order to reduce their own work load and to avoid blame for controversial policy choices (Volden

2005). In contrast to some of the other explanations here, this would suggest that preemption activity is a result of

institutional rather than political factors.

Finally, regional patterns that emerge in preemption activities (see Figure 1) suggest these trends may be a function

of political culture, where existing beliefs related to government’s role in political society have led states to rely on

preemption to uphold existing norms. For instance, Elazar’s (1984) conceptualization of political culture relies on the

idea that states may define “good government” as either empowering the individual (individualistic cultures), pursuing

the public good (moralistic cultures), or upholding an elitist system (traditionalistic cultures). As such, lawmakers in

individualistic states may be more willing to allow decentralized approaches that can be curtailed to individual needs,

as compared to those in moralistic or traditionalistic states who may be more concerned with broad ideals of the public

good and existing systems of political power. Moreover, lawmakers in traditionalistic states in which “good

government” is defined by maintaining existing institutions are likely to respond negatively to progressive policies in

order to uphold political norms. As such, differences in how state lawmakers interpret local actions as aligning with

ideals of “good government” may motivate them to prohibit certain actions.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Data

We investigate the level of support for these explanations using an ordinary least squares (OLS) regression model,

with the dependent variable being the number of subjects preempted by each state. (Diagnostic tests indicated no OLS

assumptions were violated. Specifically, VIF scores indicated no multicollinearity, and White’s test indicated no

hetereoskedasticity). For predictor variables, we use the following variables to capture our five potential explanations.

Descriptive statistics are provided in Table 3. While several predictors are time invariant, we measure other predictors

based on available data after 2000, as it represents a modern political era and we believe that this most accurately

captures political factors that explain contemporary trends in preemption adoptions. Nevertheless, the lack of temporal

specificity in our data creates an analytical limitation.

[Table 3 about here]

First, to test the Home Rule explanation, we use a dummy variable comparing states under Home Rule doctrines (zero)

to states under Dillion’s Rule doctrines (one). Based on Krane, Rigos, and Hill (2001), we determined that ten states

operate under a Home Rule doctrine, while forty states operate under Dillon’s Rule (or a modified versions of Dillon’s

Rule). Although some nuances exist, this creates one of the most basic dichotomies in the legal relationship between

state and local governments.

Second, to test the urban-rural explanation, we use the average percentage of state population living in urban areas

between 2000 and 2010. With data from the two most recent US Censuses, we used the percentage from 2000 and

2010 to calculate the average during this time period (Census, 2019). Given that many rural-urban conflicts are

exacerbated by urbanization, especially as it relates to rural- or urban-bias and the peri-urban fringe, this measure

captures the prominence of urban areas as compared to non-urban areas (Simon 2008; Lichter and Brown 2011). This

assumes that state legislatures serve as a key policymaking venues for rural interests that may be less organized or

centralized than urban interests (Bell, Lloyd, and Vatovec 2010; Chen and Rodden 2013). In other words, in states

with large urban populations, legislatures are likely to play a more active role in balancing urban and rural interests.

On the other hand, in states with small urban populations, urban-rural differences are less politically polarizing, so

state legislatures are not pressured to centralize control in order to reduce conflicts. We considered alternative

measures, such as ratio of urban to rural populations; however, statistical diagnostic tests indicated urban population

percentage is the best fit for our data.

Third, to test the partisanship explanation, we use the average percentage of Republicans serving in the state legislature

between 2000 and 2017. Using data from Dubin (2007) and the National Conference of State Legislatures (NCSL

2019), we divided the number of seats held by Republicans by the total number of state legislative seats for each year,

and then calculated the average across the eighteen years. We considered other measures of partisan control, including

Republican control of the state senate, house, and/or governor’s office. Tests of these measures yielded similar

findings to those for percentage of Republicans in regards to the effects of partisanship on number of preemption

subjects. However, percentage of Republicans provides a more nuanced test of partisan influence. Given that this

explanation is grounded in partisan polarization, this measure allows us to consider whether more Republicans is

correlated with more preemption, rather than whether Republican-control is correlated with more preemption. While

previous research supports this explanation as it applies to Republican-controlled states (Riverstone-Newell 2017),

using percentage of Republicans may provide additional insights into whether this explanation holds up when

considering comparisons between states with Republican majorities, or states with Democratic majorities.

Fourth, to test the effect of legislative professionalism, we use an ordinal variable ranging from full-time professional

legislatures (four) to part-time, citizen legislatures (zero) based on classification from the NCSL (NCSL 2017). NCSL

classifies state legislatures based on the amount of time legislators dedicate to doing legislative work, their

compensation, and the size of their professional staffs. Based on this, legislators in part-time, citizen legislatures

spend the equivalent of less than half of a full-time job doing legislative work for little compensation and with

relatively small professional staffs. On the other end of the spectrum, legislators in full-time, professional legislatures

spend the equivalent of 80 percent or more of a full-time job on legislative work, are compensated enough so they do

not have to seek outside income, and have relatively large staffs. Although other measures of legislative

professionalism exist, their validity depends on the dimensions of professionalism and the time period for which they

were developed (Mooney 1994; Squire 2007). However, Mooney (1994) indicates that there is a high degree of

consistency across different measures. While not particularly sophisticated, the ordinal variable used here does capture

the underlying concept that we are interested, where others may not be general enough and/or are outdated.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Finally, to test the political culture explanation, we use Elazar’s (1984) typology to create two dummy variables

comparing Moralistic and Traditionalistic to Individualistic cultures. While Elazar (1984) provides more nuanced

classifications for how political cultures are distributed across the U.s., other scholars have since labeled states as

falling into one of these three types based on their dominant political cultures (see Smith, Greenblatt, and Buntin 2018,

12). Although Elazar’s typology has been criticized on both theoretical and methodological grounds and other

measures of political culture exist, it remains one of the most commonly used measures of political culture in

comparative state policy research (Fitzgerald and Hero 1988; Wirt 1991; Lieske 2010). To this end, numerous scholars

have used this typology to explain policy adoptions related to issues such as welfare reform (Mead 2004), renewable

energy (Fowler and Breen 2013, 2014), pay equity (Reese and Warner 2012), higher education (Heck, Lam, and

Thomas 2014), and healthcare (Fossett and Thompson 2006). As such, our measure of political culture is consistent

with previous scholarship.

Findings

Table 4 displays the results of the OLS model and indicates support for four of the five explanations. Specifically,

states with Home Rule doctrines, a higher percentage of Republican state legislators, more professionalized

legislatures, or Moralistic or Traditionalistic political cultures are likely to have preempted more subjects than other

states. Although a positive coefficient indicates that states with higher urban populations preempt more subjects, the

lack of statistical significance means we cannot be certain of the impact of urban-rural conflict on preemption activity.

Given the recent media accounts of preemption activity, these findings are not particularly surprising, but they do

provide some more substantive data to support existing explanations. Additionally, standardized coefficients indicate

that partisan legislative control and political culture are the strongest predictor of preemption activity, while Home

Rule and citizen legislatures are among the weakest predictors in the model. As a whole, this may suggest that

institutional features are less important in predicting preemption activity from states than political factors. Finally,

the R

and adjusted R

indicate that our model is a strong predictor of the number of preempted subjects by state.

[Table 4 about here]

Discussion and Conclusion

Our investigation of state use of preemption provides some support for several key explanations previously suggested.

In general, it appears that politically conservative states are the most likely to use preemption, although institutional

features like Home Rule and legislative professionalism also contribute to this activity. Furthermore, the regional

patterns that emerge in figure 1 tell a similar story about which kinds of states are using preemption more frequently.

Generally, we can infer from these findings that conservative states use preemption to rein in local authority that may

be challenging traditional political norms. Of course, this finding largely aligns with previous research concerning

conflict between conservative states and progressive cities (Riverstone-Newell 2017). However, we provide two key

contributions. First, our analysis relies on a dataset that includes preemption across seventeen policy subjects, which

is one of the most comprehensive listings of preemption activity by state in recent literature. As this provides a broader

perspective than extant scholarship, we can conclude that these trends are not limited to specific states or preemption

subjects. Second, our findings indicate that preemption is better explained by political factors than institutional

features, which would suggest that recent preemption activity is likely a result of increasing political competition

and/or partisan polarization. Given that institutional features like legislative professionalism and Home Rule doctrines

are long-standing, this would also suggest that contemporary trends in preemption are a departure from the past.

Nevertheless, since we rely on cross-sectional data, our inferences are limited to correlations between state political

dynamics and preempted policy subjects. The temporal aspect here is important as state political dynamics have

shifted over the last several decades (Fiorina, 1997; Stonecash and Agathangelou 1997; Shufeldt and Flavin 2012).

As such, it is difficult to determine if Republican-controlled state legislatures are more likely to adopt preemption

measures, or if Republicans are more likely to control legislatures in states with a history of adopting preemption

measures. Our findings also do not account for whether preemption is more common historically in states with

professional legislatures, who used it under different political and administrative circumstances, or if professional

legislatures are still using preemption more frequently than other state legislatures. Additionally, given the small n-

size, our findings are not robust, which increases the likelihood of type-1 and type-2 statistical error. Furthermore,

perspectives on intergovernmental relations tend to look different when taking a top-down as compared to a bottom-

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

up view (McGuire 2006; Bowman and Kearney 2011). Consequently, our analysis is also limited by our reliance on

state-level data that does not incorporate local policy innovation, regulatory consistency, or intra-state political

polarization.

While preemption has long been a tool for state legislators to constrain local authority, current trends in use of

preemption appear to depart from traditional patterns. More specifically, the rise in state preemption in recent years

appears to be connected to increased political competition more so than allocating policy responsibilities in such a

way that it produces the best public services (Volden 2005). Although previous scholarship indicates partisanship is

also a significant driver in federal preemption of state authority, trends at the state-level appear to be different. More

specifically, SoRelle and Walker (2016) find that Congressional Democrats adopt preemption at a similar rate as

Republicans, albeit for different purposes. However, we find no evidence that Democrats in state legislators are

engaging in similar behavior as Republicans. Most likely, this is because Congressional Republicans and Democrats

battle vertical political competition from both liberal and conservative states; on the other hand, municipalities

engaging in policy innovation tend be overwhelmingly liberal and create more competition for Republican than

Democratic state legislatures. While the predominant focus of federalism scholars has been on federal-state conflicts,

“recent disputes between state and local officials’ rival federal-state battles in their intensity” (Riverstone-Newell

2017, 420). As such, state-local conflict may represent not only the new battlefield of federalism, but also an emerging

battlefield in the partisan polarization war. If true, this may partially explain both the surge in state preemption

activities and in local policy innovation in recent decades (Bowman 2017; Langan and McFarlan 2017).

While further research is necessary to examine these patterns, variation across states in preemption suggests that there

may be divergent philosophies of state and local authorities emerging due to political differences. In other words, the

underlying philosophy of which policy authorities lie with states or with local governments may be fundamentally

different in more traditional, conservative states than more progressive, liberal states. Consequently, power

distributions between state and local governments are likely shifting as well, which requires us to reconsider extant

models of intergovernmental relations. Importantly, this may also further hint at how political polarization is affecting

not only our political discourses but also our political institutions, where state-local relations may look fundamentally

different in conservative states than in liberal states. Several scholars have already produced important work on this

front, noting the increasingly innovative roles that local governments are playing and offering explanations of what

has spurred these trends (e.g., Feiock and Scholtz 2009; Riverstone-Newell 2017). However, there is still a need to

examine preemption using more systematic methods in order to comprehend how institutions and legal authorities

have shifted in response to political conflicts. As such, the sort of research presented in this article is a key step in

furthering this agenda as it begins to unpack key dimensions of preemption trends.

Acknowledgements: The authors would like to thank Publius editor, John Dinan, whose comments helped to improve

the final quality of the text.

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Table 1. Subjects of Preemption by Frequency of State Adoption

Subject

Description

Count

states

Firearms

Restricts local regulation of firearm or ammunition sales, possession, or usage

(Schragger 2017; Grassroots Change 2018)

Sharing economy Restricts local regulatory power over ride hailing platforms (e.g., Uber) or short-term

rental/home sharing platforms (e.g., Airbnb) (DuPuis, et al. 2017; Schragger 2017)

Pesticides

Prohibits local regulation of pesticide sale or use, including marketing, distribution,

training, or storage and disposal (Schragger 2017)

Rent control Prohibits local authority to set rental prices for private housing units (Schragger 2017)

Minimum wage Prohibits local governments from establishing a minimum wage that exceeds minimums

established by state or federal laws (DuPuis, et al. 2017; Schragger 2017)

Dog breed

limitations

Prohibits local ordinances that ban ownership of certain dogs that may be perceived as

dangerous based on breed (Schragger 2017)

Municipal

broadband

Either explicit prohibition of public entities providing broadband services, or procedural

barriers that significantly restrict local capacity to pursue public broadband services (e.g.,

required ballot initiatives or feasibility studies) (DuPuis, et al. 2017)

Paid leave Prohibits local governments from requiring employers to provide paid sick leave or

vacation days to employees beyond state or federal requirements (DuPuis, et al. 2017;

Schragger 2017; Grassroots Change 2018)

Fire sprinklers Prohibits local requirements of fire sprinklers in residential dwellings (Grassroots

Change 2018)

Factory farms

Restricts local zoning ordinances related to agricultural production (Schragger, 2017;

Grassroots Change 2018)

Employee

benefits

Prohibits local governments from requiring employers to provide employee benefits (i.e.,

healthcare insurance) to employees beyond state or federal requirements (Schragger

2017)

Smoke-free

Prohibits local ordinances related to smoking in public places or commercial venues

(Grassroots Change 2018)

Nutrition

Restricts local regulatory authority over portion sizes, as well as incentives to promote or

reduce usage of any type of food, nutrition, or farming (Schragger, 2017; Grassroots

Change 2018)

Inclusionary

zones

Prohibits local requirements for private developers to include affordable housing units

within projects (Schragger 2017)

Plastic bags Restricts local authority to regulate the use of plastic bags, including usage fees

(Schragger 2017)

Discrimination

Prohibits local governments from extending protections surrounding employment, use of

public facilities, or commercial activities to protected classes not recognized by state law

(DuPuis, et al. 2017; Schragger 2017; Grassroots Change 2018)

Fracking

Prohibits local regulation of hydraulic fracturing used in oil and gas operations

(Schagger 2017)

Source: Authors’ calculations based on data drawn from DuPuis, et al. 2017; Schragger 2017; Grassroots Change

2018.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius: The Journal

of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Table 2. Number of Preempted Subjects per State

State

Number of

Preempted Subjects

State

Number of

Preempted Subjects

Alabama

Montana

Alaska

Nebraska

Arizona

Nevada

Arkansas

New Hampshire

California

New Jersey

Colorado

New Mexico

Connecticut

New York

Delaware

North Carolina

Florida

North Dakota

Georgia

Ohio

Hawaii

Oklahoma

Idaho

Oregon

Illinois

Pennsylvania

Indiana

Rhode Island

Iowa

South Carolina

Kansas

South Dakota

Kentucky

Tennessee

Louisiana

Texas

Maine

Utah

Maryland

Vermont

Massachusetts

Virginia

Michigan

Washington

Minnesota

West Virginia

Mississippi

Wisconsin

Missouri

Wyoming

Source: Authors’ calculations based on data drawn from DuPuis, et al. 2017; Schragger 2017; Grassroots Change

2018.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Table 3. Variable Descriptive Statistics

Variable

Description

Mean

(or %)

St. Dev.

Min

Max

Preempted Subjects

(DV)

Count of preempted subjects by state

6.319

3.065

Home Rule Dummy variables comparing states with

Dillon’s Rule status to Home Rule status

(Krane, Rigos, and Hill 2000)

.787

.414

Republican

Legislature

Average percentage of Republicans in state

legislature between 2000 and 2017 (NCSL

2019)

.509

.143

.142

.801

Legislative

Professionalism

Ordinal variable comparing states with

professional legislatures to citizen

legislatures (NCSL 2019)

1.920

.986

Urban Population

Average percentage of state population

living in urban areas between 2000 and 2010

Census (Census 2019)

72.407

14.887

38.550

94.700

Moralistic Political

Culture

Dummy variable comparing states with

dominant Moralistic cultures to other states

(Smith, Greenblatt, and Buntin 2018)

.361

.486

Traditionalistic

Political Culture

Dummy variable comparing states with

dominant Traditionalistic cultures to other

states (Smith, Greenblatt, and Buntin 2018)

.361

.486

Table 4. OLS Regression Model of Preemption Subject Count

Coefficients Standardized Coefficients

Home Rule

1.756 (.838)*

.237

Republican Legislature 11.265 (2.537)*** .525

Legislative Professionalism 1.223 (.387)** .396

Urban Population .008 (.027) .038

Moralistic Political Culture 2.558 (.932)** .405

Traditionalistic Political Culture

3.542 (.884)***

.561

Constant

.784

.530

Adjusted R

.459

Note: *<.05, **<.01, ***<.001. Standard errors are reported in parentheses.

Three states were dropped from the analysis due to missing data. Nebraska has a non-partisan legislature, and

Elazar (1984) does not include a political culture classification for Alaska or Hawaii.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Source: Authors’ calculations based on data drawn from DuPuis, et al. 2017; Schragger 2017; Grassroots Change

2018.

This is an author-produced, peer-reviewed version of this article. The final, definitive version of this document can be found online at Publius:

The Journal of Federalism, published by Oxford University Press. Copyright restrictions may apply. doi: 10.1093/publius/pjz011

Figure 1. Distribution of Preempted Subjects Across States