State Preemption and Local Responses in the Pandemic


Professor Nestor Davidson has co-authored an op-ed for The American Constitution Society examining how the limited power of cities and local government has affected the response to the pandemic.

Over the past decade, the misuse of state preemption has significantly limited the power of cities and other local governments to solve problems for their residents.  Now, with the nation facing the COVID-19 pandemic, the high cost of undermining local authority and independence has become apparent. Existing and new COVID-19-related state preemption has hampered local government response to the crisis, made it harder to protect the lives and livelihoods of their residents, and impeded early efforts towards equitable recovery.

A decade of preemption has left cities starting from behind in their response to the pandemic in critical policy areas such as paid sick leave, tenant protections, and access to critically needed broadband.  To begin with paid sick leave, while local policies proliferated in some states to protect workers, 23 states with preemption in place as the crisis emerged prevented cities from acting.  Some preempting states, including IndianaMichigan, and North Carolina, were forced to enact emergency paid sick leave policies to cover health care and other workers on the frontlines.  In other states, including Tennessee and Florida, advocates have asked their governors to suspend paid sick leave preemption so local governments can do more to protect residents.

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