The Pre-emption Racket

Conservative state governments are rolling back local public health initiatives, intentionally putting their citizens in harm’s way.

Georgia Governor Brian Kemp gives a press conference about restaurants reopening in late April (Kevin C. Cox/Getty Images)

Earlier this month, Georgia Governor Brian Kemp urged state residents to wear masks to protect themselves against COVID-19. He then promptly issued an executive order prohibiting local governments from mandating masks and sued the mayor of Atlanta for attempting to do so. In Iowa, Governor Kim Reynolds steamrolled the plans of some school districts to begin the school year online, issuing a proclamation prohibiting “a brick-and-mortar school district . . . from providing instruction primarily through remote learning.”

This pattern of political indifference—if not hostility—to the most elementary public health measures has earned the United States both international ridicule and an alarming surge in COVID-19 cases and deaths. Just as alarming is the fact that local governments (cities, counties, and school districts) attempting to do the right thing are being beaten back by state officials. In Iowa, some municipalities and counties are pressing ahead with local mask mandates, while conceding that—under current law—they may be unenforceable.

We can thank Judge John F. Dillon of the Iowa Supreme Court for this jurisdictional trap. In 1868, Dillon established the precedent—known as “Dillon’s Rule”—that local governments could exercise only those powers expressly granted to them by state legislatures or constitutions. Over the next century, most states retreated somewhat from this rigid standard, granting some “home rule” powers to cities and counties—if only to relieve states of the burden of legislating every local levy and pothole repair.

But state pre-emption of local legislation has become a favorite tool of the right against “runaway local governments.” In recent years, states have used pre-emption to forestall or repeal local efforts to raise labor standards (especially minimum wage and paid leave), to bolster civil rights, and to regulate firearms or soft drinks or plastic bags. Smacking down public health measures is just the latest front in this assault on local democracy.

The cruel irony is that the right has long been animated by a rhetorical devotion to local control. That was the banner under which Iowa gutted collective bargaining for teachers and other public sector workers in 2017. But it is state governments that are the real sweet spot for conservatives. Devolution of responsibility from federal to state (most dramatically in the long history of welfare “reform”) ensures wide inequality across states and—because states are so fiscally constrained, with little capacity for the sort of debt financing undertaken by the federal government—constant pressure to slash program spending or eligibility.

In turn, state legislatures are uniquely positioned, and inclined, to keep their cities—the locus of progressive politics in any state—in check. The result is systematically and intentionally undemocratic. State governments, in which urban populations are badly underrepresented, are running roughshod over local governments and school boards. Even worse, with legislative sessions truncated by the virus, much of this is being done by proclamation from the governors’ offices alone.

The result is also fundamentally racist. In Iowa and Georgia alike, black and brown people live mostly in cities, are disproportionately represented among front-line workers, and are disproportionately exposed to the health risks posed by population density, segregation, environmental racism, and discrimination.

Governors Kemp and Reynolds are not pursuing the common good, or policing the boundaries of home rule in their respective states. They are taking aim at the jurisdictions in their states where their support is the weakest and intentionally putting their citizens—and in the schools, their children—in harm’s way.

Colin Gordon is a professor of history at the University of Iowa. He is the author of, most recently, Growing Apart: A Political History of American Inequality and Citizen Brown: Race, Democracy, and Inequality in the St. Louis Suburbs.