Democratizing Emergencies: The Local Predicament

Abstract

Disasters are typically local events even in a pandemic. Throughout 2020 into 2021, state governors used their emergency powers to issue stay-at-home orders, close non-essential businesses and either prohibited or banned mass gatherings including gatherings for religious services. However, it has been local government that reacted more quickly in the beginning and has continued to act into early 2022 when many state governments refuse to consider social mitigation measures to curb transmission despite a national surge of nearly a million cases per day. For those citizens who desire their state government to do more in an emergency, local government often filled that gap. While these local cities and counties are enacting such measures like a school mask mandate in direct response to local public health metrics, many have faced resistance from their state. Some states have banned local authorities from enacting certain mitigation measures and have aggressively sought to restrain those local authorities from defying these bans through litigation and fines. While red states preempting blue city laws is not new, some of the states’ bans are more brazen in method and more crippling in outcome. This new form of “crippling preemption” places local officials in an untenable predicament. Charged with providing for the health, safety and education of its citizens, local government cannot carry out its duties if state government removes critical public mitigation tools from its toolbox in a public health emergency. This Essay highlights the urgent need for local government to fully respond in an emergency and the most important problems facing proponents of responsive regulation. This Essay urges local government to continue to challenge state-placed limitations on local emergency orders. The Essay further concludes: 1) that the state and federal courts can and should bolster the local governments’ legitimacy in their actions on either constitutional or statutory grounds; and 2) that governments should model themselves on those successful state-local partnerships, especially ones that transcend party lines.

Keywords: COVID-19, State government, local government, preemption, home rule, executive orders, emergency powers, public health