How Cities Can Protect Public Health When States Stand in the Way
UVA Law Faculty Affiliations
Cities play a vital role in protecting the health and safety of their residents. But they have been increasingly thwarted by their own state governments, thanks to a relatively recent uptick in “preemption,” where a higher level of government uses either executive authority or legislation to limit the authority of a lower level of government. In Atlanta, for example, Mayor Keisha Lance Bottoms has been consistently stymied in her efforts to fight the COVID-19 pandemic with mask regulations and business closures by a state policy that prioritizes reopening the economy.
Preemption can be an important and useful tool when it’s used to create a “floor” of protections that apply state or nationwide. The Civil Rights Act of 1964 is a prime example: It preempts discriminatory state and local laws. But states are increasingly using preemption to create a regulatory vacuum rather than a regulatory floor, leading to situations where a state both refuses to act on a certain issue and forbids localities from doing so themselves.