If you’re a DC resident, you may be familiar with meddling from the federal government in local affairs. Turns out, if you’re living in a different city — particularly in Virginia and Maryland — it could be even worse. When states pass legislation that bars localities from regulating local issues, or when the federal government does the same for states, this is known as "preemption." Preemption affects a wide variety of policy decisions ranging from plastic bags to dockless bikeshares, so it's important for citizens to understand.
Here's how it works: the Constitution states that federal law is superior to state law when the two conflict, and similarly state governments may override conflicting ordinances passed by local governments. State governments have even more latitude to overrule those lower on the food chain because local governments owe their existence to the state, whether they be counties, cities, parishes, townships, or mosquito control districts.
Much as the DC government is a creation and subset of the federal government (which largely delegated its local responsibilities via the 1973 Home Rule Act), so too are local governments across the country creations of the state that chartered them. States are sovereign entities joined in union under a Constitution that reserves a great deal of power for them via the 10th Amendment, but local governments have no independent status. These power dynamics help inform how and why local decisions are made.
This lack of independence is even more intense locally
Localities in most states – Virginia and Maryland included – are further constrained by what’s known as Dillon’s Rule. Dillon’s Rule says that local governments only have the powers that are affirmatively, expressly granted to them by the state. Often, these powers are very basic and limited – especially in Virginia, where Dillon’s Rule is often a pejorative term to local government officials.
All Virginia localities must routinely go to the General Assembly for permission to act on matters large and small, controversial and not – sometimes to an absurd end. In 2011, Chesterfield County officials had to seek permission from the General Assembly in order to authorize a retiring volunteer firefighter to retain his helmet for a memento.
Nonetheless, there is a distinction in the status of Virginia’s independent cities (e.g. Alexandria and Falls Church) compared to its counties (e.g. Fairfax and Arlington).
The cities have somewhat more latitude by rule than the counties, as seen recently when Alexandria began moving forward with a name change to the portion of “Jefferson Davis Highway” which runs through city limits. Arlington County was stymied in its attempt to do the same by inaction from the General Assembly, which is required of counties seeking to rename state roads within their boundaries. For this and other reasons, some – like former Arlington County Board Member Jay Fisette – have suggested that Arlington should be reincorporated as a city.
Home Rule is the exact opposite
In a select number of states known as “home rule” states, such distinctions in local government status are more trivial. In these states – Florida, New Jersey, Massachusetts, and Ohio among them – the assumption underlying Dillon’s Rule is flipped: local governments are chartered with the ability to exercise power over anything within their domain, provided that their actions do not conflict with state law or the terms of their charter. There is no need to seek “affirmative consent.”
In other words; the assumption is that your local government has the ability to do something unless it has been expressly told it cannot. Of course, merely being a home rule state does not free localities from state government meddling — it just means that the meddling must be active rather than passive.
One of the manifestations of this is a bill now before the Florida Senate that would overrule prospective local efforts to regulate dockless bikeshare companies. Unsurprisingly, the bill is being pushed by a lobbyist retained by one of the companies, Ofo.
Similarly, Texas lawmakers last year passed a bill at the behest of Uber and Lyft to overturn ridesharing regulations promulgated by the City of Austin.
Preemption laws have a wide impact
Nationally, preemption laws will remain a favorite of Republican-controlled state governments for as long as the country’s major cities remain the last, best hope of progressive policymaking. As CityLab has chronicled, preemption efforts have largely curbed various local laws providing for LGBT protections, higher minimum wages, paid sick leave, so-called “sanctuary cities,” smoking bans, hydraulic fracturing (“fracking”) bans, and plastic bag fees.
However, preemption can and does sometimes work in favor of progressive policy priorities. In 2017, Maryland’s General Assembly considered two prominent bills that amounted to preemption efforts: one would have completely banned fracking in the state, while the other would have imposed limitations on all law enforcement agencies in the state regarding their ability to cooperate with federal immigration officials. The former bill, backed by Republican Governor Larry Hogan, became law despite the strenuous objections of many local officials and Assembly members from Western Maryland. The latter passed the House of Delegates but got bottled up in the Senate and was eventually withdrawn.
Efforts like these could become more common nationally if, as expected, Democrats do well in elections this year and gain more control in statehouses. “Preemption” is ultimately a lever of power more than a product of ideology, and whatever principles one may hold over its deployment are often subordinated to the practical temptation to use it by whomever is in power to advance their agenda. That said, it is a more powerful cudgel to Republicans at a time when Democrats exercise almost universal control of the country’s major cities.
This matters here in the Washington region
Locally, with the District autonomous and therefore able to operate with a relatively free hand in coordinating its end of regional policy, the question over the next several years will be how the interplay between Annapolis and Richmond affect local consensus on a variety of issues, such as dedicated funding for Metro. Despite the area’s overwhelming liberal lean, the continued existence of a Republican-controlled General Assembly in Richmond and a Republican-controlled Governor’s Mansion in Annapolis – however tenuous either or both may be – will continue to force regional consensus well to the right of where it likely would be organically.
Major Democratic gains in the Virginia House of Delegates likely create an easier path for Northern Virginia to pursue self-taxation initiatives for Metro. However, on regional policy where outcomes tend to reflect the sensibilities of the least-willing, much rides on the Maryland governor’s race. If Governor Hogan wins reelection (at the moment he is considered the favorite), the state’s main regional transportation priority for the next four years will almost assuredly be the recently-announced plan to widen and/or add HOT lanes to the Beltway, I-270, and the Baltimore-Washington Parkway…despite the lack of enthusiasm among locally elected officials.
Midterm election years are a time for choosing. Inasmuch as down-ballot offices don’t face competition from the noise of a presidential election, midterms represent an opportunity for local issues to get a higher-profile airing than in other years. However, if all politics are truly local, in the age of preemption what goes on in Annapolis or Richmond may be more important to your issue than what happens in Rockville, Upper Marlboro, or Fairfax.