The Political Process of Preemption
65 Pages Posted: 16 Sep 2019
Date Written: September 13, 2019
Preemption, particularly of the state-city variety, has become a hot topic. State legislatures in many states over the last decade have preempted a wide swath of areas in which cities and counties were previously free to govern. In addition to the sweeping nature and frequency of preemption, the increasingly aggressive methods of enforcing preemption have drawn notice. Fiscal penalties, removal of local officials from office, and even criminal sanctions for local officials constitute what scholars now refer to as “hyper-,“ “super-," or "the new" preemption. This phenomenon has harmed local democracy in particular and our democratic system writ large.
Advocates of all stripes, however, agree that preemption is a useful and potentially legitimate tool in certain circumstances. The disagreement is frequently about which policy matters should be preempted. This Article proposes a different way of examining preemption. Rather than debate the policy merits of the subject of the particular preemption at issue, it urges a focus on the process by which the state produces a preemptive outcome. Drawing on political theory from the Founding and key Supreme Court cases — notably, the 1964 one-person, one-vote landmark of Reynolds v. Sims — this Article argues that preemption is most democratically legitimate when it results from a credibly majoritarian democratic process at the state level.
Proceeding from this premise, the Article examines states where there is substantial evidence of intentional political gerrymandering in the last two decades. It then assesses how these states’ legislatures, skewed away from credibly representing a majority by gerrymandering, have taken aim at local power in ways that inflict serious democratic harm. Not only does the state legislature not accurately represent the states’ voters in these states; voters are deprived of using their local governments to adopt policies that they prefer. The Article also examines situations where the legislature’s role in preemption is less prominent, such as when preemption is the result of direct democracy ballot measures. In this context, the Article applies the broader criticisms of direct democracy to the specific context of state-local preemption. The Article leaves for future work to offer specific doctrinal solutions for the problems presented.
Keywords: preemption, local government, gerrymandering, elections, districting, state government, state legislatures, cities
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