Cameron Miranda
The US government operates a shared governance system, which means that while federal laws are set by the federal government, smaller levels of government such as state, county, and local governments also have a role to play in the legal system. This can lead to conflicts between federal, state, and local laws, a concept known as preemption. Preemption allows the federal government to override local or state laws if they conflict with federal laws. Similarly, states can also preempt local laws, as seen in the case of New York, where the state government blocked a plastic bag tax in New York City. Cities within a county may have their own local laws and governments, and these can sometimes conflict with county-level laws.
| Characteristics | Values |
|---|---|
| Local governments can make laws for specific purposes for certain geographic areas | Cities, towns, or villages within a county may have their own local laws and government |
| Federal preemption | The federal government can preempt local or state laws if they conflict with federal laws |
| State preemption | State preemption has been used more aggressively in recent years, often by red states against blue cities |
| Home rule | The legal doctrine that gives local governments expanded power over their local affairs |
| Dillon's Rule | Local governments only have lawmaking authority that is expressly delegated to them by the state or indispensable to the purposes of their incorporation |
| State and local laws conflict | State law preempts local ordinances when the state legislature has expressly withdrawn the power of municipalities to act, the ordinance logically conflicts, defeats the purpose of state legislation, or violates the spirit of state legislation |
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Local government laws
The US government operates a shared governance system, which means that while federal laws are set by the federal government, smaller levels of government, including state, county, and local governments, also play a crucial role in the legal system.
The legal doctrine that gives local governments expanded power over their local affairs is called "home rule". This exists alongside its more restrictive counterpart, Dillon's Rule, which states that local governments only possess lawmaking authority that is either expressly delegated to them by the state or indispensable to the purposes of their incorporation. In most states, both rules coexist, with one or the other taking precedence depending on the context.
However, conflicts can arise between state and local laws, known as preemption. This occurs when a state legislature expressly withdraws the power of municipalities to act, or when a local ordinance logically conflicts with, defeats the purpose of, or violates the spirit of state legislation. For example, in 2017, New York's Democratic governor, Andrew Cuomo, signed a bill blocking a plastic bag tax in New York City. In another instance, the city of Seaford, Delaware, enacted an ordinance for the disposal of fetal remains, which the state argued conflicted with its statutory scheme for the disposal of human remains.
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Zoning ordinances
In the United States, the federal government and smaller levels of government, including state, county, and local governments, coexist in a shared governance system. Counties are subject to federal and state laws, and they can also make their own laws, which may apply to the cities, towns, or villages within them. Local zoning ordinances are an example of this.
Changes to zoning ordinances can also be made through the approval of a variance, which allows a new tenant to deviate from current zoning rules. Additionally, certain exceptions allow properties that do not meet the requirements of a zoning ordinance to be established in their respective geographic zones. For example, if an ordinance changes a zone from allowing commercial businesses to a residential-only zone, some small, local businesses may be allowed to remain open due to a legacy clause.
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State preemption
In the United States, preemption is a legal doctrine that allows higher levels of government to restrict or prevent a lower-level government from self-regulating. While it is often thought of in the context of federal preemption of state laws, preemption is increasingly used by states to limit cities, counties, and other lower-level municipalities from legislating across a broad array of issues.
The extent of a state's ability to preempt local governments depends on various factors. These include whether the state follows Dillon's Rule, which only permits local governments to legislate where the state has expressly allowed, or whether the state grants local governments the power to govern (Home Rule). Only California and Ohio protect municipalities from preemption.
Some common targets of state preemption include ordinances related to the minimum wage, paid sick leave, firearms policy, plastic bags, and marijuana decriminalization. For example, in 2017, New York's Democratic governor, Andrew Cuomo, signed a bill blocking a plastic bag tax in New York City. In 2019, more than half of US states preempted local minimum wage laws, and many banned local paid sick day laws.
Preemption is often criticized for being used to uphold racist and inequitable structures, harm workers, and undermine local efforts to advance equity, public health, and democracy. For instance, in 2019, anti-sanctuary city and anti-immigrant bills were the most common preemption bills, threatening to withhold funds from municipalities seeking to protect immigrants.
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Federal preemption
The US government operates a shared governance system, with federal, state, county, and local governments. While the federal government can make laws that apply to the entire country, states and local governments also have the power to make laws that apply to their specific areas. This is where the concept of federal preemption comes into play.
Preemption can also occur between state and local governments, with state law overriding local ordinances. This often happens when there are differences in the partisan makeup of the respective governments. For instance, a Democratic-led city's efforts to increase the minimum wage may be preempted by a Republican-led state government. Similarly, a state law may preempt a county law, as seen in the case of Arizona's House Bill 2153, which limited the authority of cities, towns, counties, and political subdivisions.
While federal preemption ensures national uniformity on certain issues, it can also limit local policymaking authority and innovation. This has been a concern during the COVID-19 pandemic, as states prohibited cities and counties from implementing their own policy responses, such as mask mandates and business closures. To address this, the federal government can support local policy innovation, even in states with a broader range of local law preemption, as seen in the case of municipal broadband. By prioritizing support for municipal broadband, the federal government can promote local policy innovation and realign state and local policy priorities.
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Home rule
In the U.S., there are two types of local government: general law and chartered. General-law local governments are governed by state statute, whereas chartered local governments are governed by a municipal charter document. A charter gives a city the flexibility to choose its type of government structure. For example, a city under a charter may choose a "strong mayor" or "city manager" form of government.
There is no set standard for determining whether a local government has home rule, as different states grant varying degrees of local autonomy. However, home rule generally represents a decrease in state influence in local affairs and an increase in local self-governance.
In some states, known as home rule states, the state's constitution grants municipalities and/or counties the ability to pass various types of laws to govern themselves, as long as they do not conflict with state and federal constitutions. These states allow local governments to exercise functions without a prior express delegation of authority from the state.
In other states, known as Dillon's Rule states, local governments have only the powers specifically granted to them by the state. In these states, a city or county must obtain permission from the state legislature if it wishes to pass a law not specifically permitted under existing state legislation. Dillon's Rule states that local government powers are limited to those that are:
- Granted in express words;
- Necessarily implied or necessarily incident to the powers expressly granted; and
- Absolutely essential to the declared objects and purposes of the corporation.
Most states have a mix of home rule and Dillon's Rule, with some states granting home rule to particular cities or municipalities, but not others.
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Frequently asked questions
Counties are a smaller level of government that coexist with state and local governments. Counties can make laws for specific purposes for certain geographical areas. However, the state law preempts a local ordinance when the state legislature expressly withdraws the power of municipalities to act.
The legal concept that allows a higher level of government to override a lower level of government is called preemption. For example, in 2017, New York Governor Andrew Cuomo signed a bill that blocked a plastic bag tax in New York City.
In the case of Kirk v. City of Morgan Hill, the California Court of Appeal held that local governments are free to impose stricter gun regulations than state law. The state law set a minimum standard that local governments could exceed.
