The Greatest Threat to Defunding the Police? State Pre-emption.


In an op-ed published in Davis Vanguard, Professor John Pfaff examines the threats to defunding the police and state pre-emption.

State pre-emption is a technocratic, legalistic term unlikely to be widely discussed like “defund the police.” But it has thwarted all sorts of other policy efforts by Democratic cities in Republican states, and it now poses one of the most serious threats to anything but the most moderate of criminal legal system reforms.
Pre-emption is a straightforward concept: Cities are the legal creation of the state government, so states are free to overturn any local law they wish. If a city passes an aggressive stay-at-home order during a pandemic and the governor responds by saying only lesser stay-at-home orders are permissible, the governor’s action invalidates the tougher local rule. For years now, legislatures in more conservative states have been increasingly relying on pre-emption to block more progressive policies enacted in their bluer cities, including  higher local minimum wage laws, plastic bag bans, anti-discrimination rules, and even tougher COVID-19 standards. It’s gotten bad enough that Governing magazine recently ran an article headlined “States Pre-Empt Cities Almost to the Point of Irrelevance.”
Perhaps the other major source of growing pre-emption are legislative efforts to expand laws that give state actors the authority to intervene in local criminal cases. All 50 states already have some form of supersession law, although they vary widely on how aggressively officials like the state attorney general can take over a case. The attempts to expand these laws are a rebuttal to the rise of the progressive prosecutor movement.
In 2020, a last-minute, overlooked addition to a bill in Pennsylvania—a state that isn’t Republican controlled—ended up giving the attorney general concurrent jurisdiction over all gun cases, but only in Philadelphia. It was an unambiguously direct criticism of District Attorney Larry Krasner, a popular reformer currently running for re-election. And although Pennsylvania’s attorney general, Democrat Josh Shapiro, has said he will not use the authority the law gives him, it remains and awaits a Republican attorney general to usurp local control from Philadelphia.

Read the full article.


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