The Drifting City: The Preemption of Local Discretion
Jeffrey Swanson∗
Charles Barrilleaux†
May 19, 2016
Abstract
What factors drive a state government to restrict local autonomy? When state legislatures delegate legislative powers to city governments they are creating potential principal-agent problems, as city governments have the ability to enact policies that are inconsistent with state law.
If preemptions serve as ex post sanctions that occur because an affected third-party has challenged the validity of the ordinance in the court. What characteristics increase the expected
number of preemptions? Utilizing a data set of 156 cities that have had local ordinances preempted between the years 2000 and 2012, this paper finds evidence for a relationship between
the ideological leanings of city residents and the expected number of preemptions. Specifically
moderate cities have a lower expected preemption count than left-leaning cities.
Prepared for the 16th annual State Politics and Policy Conference, University of Texas, Dallas May
19, 2016.
∗
†
Department of Political Science, Florida State University, [email protected]
Department of Political Science, Florida State University, [email protected]
I.
I NTRODUCTION
Recent controversies highlight the occasional conflicts that occur when states and localities
share policymaking authority. North Carolina’s House Bill 2, the Public Facilities and Privacy
Act restricts the use of public restrooms to persons’ birth gender and reduces local government
powers to adopt nondiscrimination laws more broadly was a state response to a local government
ordinance with which some legislators and the governor disagreed. State legislatures have also
passed legislation to invalidate local ordinances that ban hydraulic fracturing, restrictions on the
size of trees that people may remove from their property, fees for the use of plastic bags for retail,
and a number of additional items of varying degrees of controversy.
These state-local conflicts highlight the tension between state legislatures’ claims of devotion
to local power and self-determination and their devotion to free market and social conservative
principles. Conflicts of this sort may become more pronounced in the coming years, as state
legislatures have come to be dominated increasingly by conservative members and leaders, and
states’ urban areas are more apt to have larger numbers of moderate or liberal citizens. This
conflict between state and local governments for policy authority is not new, but it is possibly
more pronounced now because of the increased newsworthiness of the sorts of conflicts that are
now occurring. It is impossible to study the recent battles systematically given the small number
of cases that exist. However, by looking more broadly at the issue, over time and over possibly
less contentious issues, we seek to develop a framework by which to study state and local policy
disputes.
What factors drive a state government to restrict local autonomy? Devolution is often posited
as a normatively desired policy goal, as it expands local autonomy allowing for policies to be
tailor-made to the needs of that sub-units’ constituents. This power decentralization characterizes
the rhetoric of the "states’ rights" movement who has allowed state governments to have some
legislative discretion over what were once federal policies (Sheely 2012). Although the "devolution
revolution" pushed for less federal control at the state-level there has been limited support for this at
the local-level (Russell and Bostrom 2016). However, states have granted local governments some
1
autonomy through home rule and enabling legislation, but doing so involves a trade-off between
the efficiency of internal policy production and the potential delegation costs.
In this paper, we look at how state governments limit local autonomy by preempting local
ordinances. The most common way local ordinances are often preempted is through state courts,
where an affected third-party challenges the legality of the ordinance. The claim that is often
raised by the plaintiff is that the ordinance conflicts with a state law, and is invalid. Although we
are unable to analyze the factors that increase agency drift by focusing on the characteristics of city
governments, the results highlight what factors increase the expected number of sanctions a city
may receive. The results thus offer an initial insight into the preemption process of local autonomy.
Diller (2007) posits that incongruent ordinances are the product of resentment from ideological
groups who feel alienated from their state legislatures. These groups lobby their city governments
to institute policies that are congruent with their interests, but can often differ from the interests
of the state government. On the other hand, discretion can also allow cities to experiment with
new policies, expanding the number of "laboratories of democracy." Therefore, what contributes
to the preemption of local ordinances? Could Diller (2007) be correct in positing that the issue is
a product of variations in ideology? Perhaps, city governments that are dominated by constituents
who are far left- or right-leaning are pushing for policies that are incongruent with state interests?
The potential for answering such a research question is made possible by the advances in public
opinion data courtesy of Tausanovitch and Warshaw (2013). Utilizing multi-level regression and
post-stratification the authors are able to compile seven large scale surveys conducted in the US
(2006-2008,2010-2011 Cooperative Congressional Election Study and the 2000,2004 American
National Election Survey) to create a public opinion data set that contains more than 275,000
individuals in over 1,500 cities. With this data the authors were able to calculate the ideal points
for the average citizen in each city. The ideology scores can serve as proxies for the ideological
leanings of city governments, as there is support in the literature for a connection between the
ideological leanings of city residents and city-level policy (Tausanovitch and Warshaw 2014; Palus
2010; Polley 2013).
2
This article seeks to illustrate the characteristics of cities whose autonomy has been restricted
by the state government. This research offers insight into the preemption process by presenting a
sample of cities who have received preemption rulings that favor the state. The results of a zerotruncated count model find that cities that are ideologically left-leaning cities and cities with fairly
large populations have a higher expected preemption count. These results hold even after a series
of robustness tests, as well as the replacement of the city-level ideology score with city-level vote
for Obama in the 2008 election. The results demonstrate support for a relationship between the
ideology of city residents and the number of ordinances that were rendered invalid in the courts.
The paper is organized as follows. First, we present the theoretical framework guiding this
research. Second, we describe the preemption process and types of preemption. Third, we present
the model used in this research along with a data description. Fourth, we present the findings of
this research. Finally, we conclude the research with suggestions for future research.
II.
AGENCY D ISCRETION
State legislatures grant cities discretion to minimize political transaction costs. This is similar to the description Epstein and O’Halloran (1999) offer regarding Congress and the choice to
grant an executive agency discretion over policy implementation. If the state legislature chooses
to grant discretion they do so because they perceive policy over city affairs to be more efficient
when conducted by city leaders. Choosing to delegate would thus shift any electoral costs from
policy failures from the state legislator to the city official. However, delegating legislative powers increases the potential for credible commitment problems. Delegation creates the concern of
agency drift because agents now have the discretion to enact policies that are inconsistent with the
preferences of state political elites. In the case of administrative agencies, Epstein and O’Halloran
(1999) state that legislators can rely on citizens to serve as "fire alarms," and in addition impose ex
ante and ex post controls. A preemption of a local ordinance can be viewed as an ex post control,
whereby the principal punishes agents who shirk. Preemptions are then a punishment mechanism
through which state political elites punish local governments by restricting their policymaking
3
powers.
I.
Discretion through Home Rule
City governments exist as a result of state government grants of recognition. Some cities re-
ceive the direct grant of a city charter from the state and others exist as a result of state authorizations for citizens who live in a certain area to form a local government. In either case, the
state government grants cities certain legislative powers. One way in which states allow some or
all cities within their borders to adopt local home rule, which is a formal grant of city powers
independent of the state.
Discretion is given to cities in the form of home rule powers, which devolves certain legislative
authority to cities. These legislative powers are often devolved with the intent of allowing cities
to institute policies that require local solutions, thus creating a more efficient legislative process.
This discretion also allows cities to institute innovative policies, and increases the political capital
of city residents as they can lobby local officials to institute policies they prefer (Bunch 2014).
Self-governance is allowed in approximately 48 states, but the nature of local discretion varies
widely.
Municipal home rule states can be divided into two types: constitutional home rule states
and statutory home rule states. Constitutional home rule states grant municipalities the power
to legislate, but only over municipal affairs (Polley 2013). Although home rule empowers local
governments, their ability to legislate over local issues is often restricted. An example of these
restrictions is described by Knight and Gullman (2014) in the case of the Colorado Oil and Gas
Association v. City of Longmont. In this case the city of Longmont enacted a local ordinance
banning fracking within their city limits, but the state regulator challenged this ban in court under
the claim that oil and gas operations are to be regulated solely by state law. The court overturned
the ordinance in favor of uniform regulation policies, as the state government is better equipped
to handle the policy area. Municipalities that are considered as general law entities also receive
legislative power. This discretion is granted to municipalities on the basis of authority that is
4
expressly given by the constitution or state statutes. This is a very restrictive form of autonomy
as the state legislature must pass an enabling act granting the local government authority to adopt
ordinances covering a specific area or field (Freilich and Popowitz 2012).
II.
Agency Drift
A state that provides blanket home rule powers to all cities allows these cities to have the
discretion to institute policies that may not coincide with the preferences of state policymakers.
The sheer number of potential local governments per state indicates the degree of difficulty a state
government, who has granted home rule, has regarding the monitoring of each individual locality.
As of 2012, the US Census counted 90,056 general purpose local governments. This averages
to about 3,463 local governments per state. This may beg the question of why even grant home
rule. A potential explanation for the existence of home rule may be the uncertainty that engulfs
legislation (Horn 1995). The inability for legislators to effectively predict the actions of future
legislators, or the ability to externalize the potential electoral costs due to failure, may increase the
likelihood that legislators choose to adopt a home rule system.
A local ordinance once enacted may go unnoticed until an affected party has challenged its
legality in court. Even when the ordinance is challenged in court either party can appeal the court’s
ruling, lengthening the legal process. For example, the Board of Supervisors for the County of
Ventura in California challenged a court ruling that upheld an ordinance establishing budget caps.
The Board of Supervisors was able to successfully plea their case and the court of appeals declared
the ordinance preempted by state law. However, the process was time consuming as the ordinance
was enacted in 1996 and declared invalid by the court of appeals in 2006. An affected thirdparty interest in this case can be thought of as a fire-alarm, as they inform the state that the city’s
policy is incongruent with state law and/or interests (McCubbins and Schwartz 1984). The court
system is used by the affected third-party to decide whether the ordinance is in fact invalid. This
helps principals manipulate the behavior of agents to assure that the goals of the two actors align
(Waterman and Meier 1998).
5
Municipal governments are also beholden to the whims of city residents and thus subject to the
preferences of competing principals. Therefore, a city government may enact conflicting policies
because city leaders must cater to the policy preferences of city residents. Preempted policies may
be a result of discontent among city residents who want the city to enforce rules that the state
has decided not to. Politicized city leaders, because of electoral constraints, are more likely to
adopt policies that reflect the pressures of local citizens and interest groups. On the other hand,
a manager-council government is more likely to be oriented towards efficiency, acting more as
a technocrat, as the manager is appointed to their position by the council (Krause, Feiock and
Hawkins 2016).
Hypothesis 1: Cities with mayoral governments are expected to have a higher number of preempted ordinances
Elected officials have incentives to be responsive to the needs constituents because of electoral
concerns. The desire to satisfy electoral demands may cause mayors to take on a shorter time
horizon, and be more risk accepting (Feiock, Steinacker and Park 2009). Potentially mayors may
be willing to institute policies that conflict with state interests, as doing so assures a satisfied
electorate and if the ordinance is preempted the mayor can shift the blame to the state government.
On the other hand, council-manager forms of government are more immune to patronage-style
politics and thus more likely to want to avoid the risk of costly court cases, or the loss in autonomy
(Swarts and Vasi 2011).
Discretion permits local governments to have the means to enact the preferred policies of city
residents (Richardson, Gough and Puentes 2003). It is because of this discretion that ideological
representation becomes more plausible at the municipal level, especially when elected officials
have an incentive to adhere to citizen preferences (Palus 2010). For example, Tausanovitch and
Warshaw (2014) find that municipal policies respond to the policy preferences of local residents,
particularly their ideological leanings. These results are also confirmed in research by Palus (2010)
who looks at the relationship between public opinion and city-level budget expenditures in policies
related to government expansion and innovation. The author finds that cities with liberal residents
6
tend to spend a higher share of their budget towards development activities. Percival, Johnson and
Neiman (2008) find a similar trend in a sample of Californian cities. The authors find a relationship between the ideological predispositions of city residents and the local per capita spending on
redistributive and developmental policies. They find that cities with more liberal residents have
higher per capita spending on public assistance. These articles highlight a potential relationship
between ideology and local-level policy. Due to the predominance of left-leaning cities in the data
set it would be difficult to generalize the results to ideologically right-leaning cities. Therefore due
to data limitations, we hypothesize that preemptions may be more likely to occur in cities with
more ideologically extreme left-leaning residents compared to cities with moderate residents.
Hypothesis 2: Cities that are composed of ideologically moderate residents have a lower expected
count of preempted ordinances
III.
Intra-State Preemption Process
There are three general forms through which preemptions of local ordinances occur: Express,
Implied, and Conflict. States restrict the discretion of cities by expressly preempting a policy field.
In this case the legislature removes all authority the local government could have had over the
field. For example, states enact oil and gas statutes that prohibit local governments from regulating the industry (Freilich and Popowitz 2012; Giller 2012). Express preemption is often used by
state policymakers to maintain uniform regulations, by limiting local control over specific policy
areas (e.g. hydraulic fracturing), or they can be the product of lobbying efforts from potentially
affected industries (Kitze 2013). An example of how lobbyists restrict local autonomy is through
gun regulation restrictions. Local authorities will often make attempts to regulate firearm usage as
a deterrence for violence, but many state governments have limited the authority of local governments to engage in such actions, usually at the behest of lobbying organizations like the National
Rifle Association. As a result of these lobbying efforts about 43 states limit the authority of local
governments to regulate firearms and ammunition (Law Center to Prevent Gun Violence 2013).
The second type of preemption is implied preemption by occupation of the field. This usually
7
requires an exercise in discretion on the part of the court, as the judge must determine whether
the state legislature intended to regulate a particular field even though it was not expressly stated.
This is the least common form of preemption as courts prefer to not engage in direct policymaking
(Freilich and Popowitz 2012). An example of this is a court case brought forth by Sequoia Park
Associates challenging an ordinance enacted in Sonoma County regarding mobile home parks. The
county enacted an ordinance that was meant to institute a state statute regarding the construction
of mobile home properties. However, the court ruled that the ordinance was impliedly preempted
because it intrudes in a field of policy where the legislature has indicated an intent to forestall local
intrusion.
The final form is preemption by conflict. This form of preemption occurs when the court determines that the ordinance conflicts with a state statute. Conflict is usually a product of a local
ordinance criminalizing activities which are legal at the state-level (Diller 2007). Within the data
analyzed this was the most common form of preemption (65%), usually a result of a municipality
imposing more stringent rules. An example of a conflict preemption is an ordinance enacted by
the City of Oakland regarding predatory lending. American Financial Services Association challenged the validity of the ordinance on the grounds that state law already regulated this field. The
court concluded that the ordinance undermined state law by prohibiting what the state government
allowed.
III.
M ETHODS AND DATA
The data analysis employs a zero-truncated Poisson count model with clustered standard errors
because of heteroscedasticity and serial correlation issues. A zero-truncated Poisson regression
model is used because the sampling process requires that an affected third-party challenge the ordinance in court. Therefore, this process excludes all cities that never had an ordinance challenged
in the courts, but may be incongruent with state laws. The choice of a Poisson model is based
on the model not suffering from over-dispersion and a low root mean squared error from a crossvalidation test. The unit of analysis is the city and the data is cross-sectional. A total of 156 cities
8
were included in the data set, but many of the cases involved county-level governments rather than
municipal. This resulted in some dependency within the data, which is corrected using clustered
standard errors.
The dependent variable is the total number of instances that a preemption occurred to a city
between the years 2000 and 2012. The Preemption Count is a sum of the total number of cases
where a court ruled that a local ordinance was preempted by state law. The dependent variable
was derived from an extensive search of legal databases, specifically HeinOnline and LexisNexis.
A search of legal cases between the years 2000 and 2012 was conducted using the search terms
"state preemption local ordinance," and "preemption local ordinance." Approximately 2,000 cases
were reviewed. The cases that were accepted were those that involved the preemption of a local
ordinance due to state law. This resulted in the rejection of cases that involved federal preemptions
of local ordinances and cases where the court ruled in favor of the city. In total 130 cases met
the criteria, but only 113 had cities that matched the cities available in Tausanovitch and Warshaw
(2013). Table 1 includes a description of the local ordinances that were preempted in the data set.
Table 1: Categories of Preempted Policies
Substance Use
Asset Seizures
Farming Related
Construction Related
Debt/Credit Related
Discrimination
Weapons
Fiscal Rule
Groundwater Use
Hydraulic Fracking
10
10
6
12
8
7
11
4
3
6
Living Wage
Traffic Related
Tenant-Landlord
Tobacco
Sex Offenders
Solid Waste/Environment
Sprinkler Requirements
Electoral Reforms
Public Utilities
Miscellaneous
3
6
6
6
7
7
3
3
5
20
City Ideology is measured using the ideological orientation for the average person within each
city from Tausanovitch and Warshaw (2013). However, using this variable requires that the data be
condensed to eliminate any time trends, as a single score is available for each city. This measure
serves as a proxy for city-level ideology because of the aforementioned responsiveness of city
officials to the ideological-leanings of city residents.
9
To account for the potential influence of electoral demands on city officials, a city-level Mayor
indicator is included in the model. This is a binary variable that indicates a city’s form of government, comparing the effect from having a mayor as the local leader to that of a council-manger
leadership. In addition to the form of government, three measures for electoral institutions are
included, as they may influence the adoption of ordinances that are preempted. Partisan Elections
may increase the strength of ideological groups to use city ordinances as a means for instituting
their preferred policies. Term Limits may reduce a local officials willingness to respond to the
ideological preferences of city residents. These measures are all taken from Tausanovitch and Warshaw (2014). All missing values were recovered by contacting the respective city government for
information.
An ideology score is included for the average score of the median legislator in the state legislate
during the analyzed time period. The score is taken from the data set constructed by Shor and
McCarty (2011) to control for state legislative ideology during the preempted time period and is
represented in the model as House Lower Average.
Socio-economic controls are added to the model to account for variations in size of government
by using variables that measure the population size and median income of each city. The natural
log of each variable is taken to reduce skewness. A resident control measure is included to account
for the ratio of home owners to renters. This variable is included to account for the possibility that
home-owners are more inclined to demand policies that are likely to be preempted, as they may be
more inclined to feel resentment towards the state legislature. This resentment should be less likely
to affect renters, as they have the potential to be mobile and can relocate to a bordering municipality
that institutes their desired policies, rather than lobby the local government. Another population
factor is racial heterogeneity. More heterogeneous populations may be less able to effectively
translate resident demands into policy. The use of a racial heterogeneity index is derived from
research by Hero and Tolbert (1996), and utilizes the proportion of racial categories within each
city. The index is calculated using the following formula:
Racial Diversity= 1- ((Proportion White)2 +(Proportion Black)2 + (Proportion All Other)2 )
10
The data for these measures are taken from the American Community Survey and the Census for
the year 2012. The summary statistics for all variables is displayed in Table 2 and Table 3 features
the number of cities per state.
Table 2: Summary Statistics
City Ideology
Mayor
House Lower Average
Term Limits
Ln Median Income
Ln Population
Heterogeneity
Partisan Elections
Initiative
Ratio Home Own/Rent
Mean
Std. Deviation
−0.180
0.370
−0.366
0.370
11.000
12.000
0.440
0.180
0.830
1.700
0.260
0.480
0.760
0.480
0.330
1.100
0.140
0.380
0.380
1.200
Table 3: State Distribution
AZ 9 MO
CA 50 NC
CO 5 NH
CT
1
NJ
FL 26 NM
GA 2 NY
IA 4 OH
ID 1 OR
IL 2 PA
KS
1
RI
KY 3 SC
LA 2 SD
MA
1 TX
MD
3 WA
MI
2 WI
MN
4 WV
11
1
2
1
6
2
6
4
2
5
1
1
1
2
2
3
1
IV.
R ESULTS
The results from the zero-truncated Poisson regression are displayed in Table 3. The results
indicate that left-leaning cities are more likely to be preempted, as well as cities with large populations. There seems to be evidence for a potential relationship between city-level ideology and the
number of preemption counts. This relationship continues to hold even under a number of model
specifications. The relationship remains consistent even after dropping outliers (i.e. cities with
more than 3 cases) and utilizing Obama vote in 2008 as a substitute for city-level ideology. Fixed
effects for the two most frequent states (CA and FL) are included to account for any potential idiosyncratic factors 1 . The results are not sensitive to functional form as a zero-truncated negative
binomial model produces similar results.
Table 4: City-Level Characteristics on Preemption Count
Coefficient
Standard Error
z-score
-2.89∗∗∗
0.03
0.54
0.10
-1.60
0.63∗∗∗
-1.12
-0.04
0.00
-0.20
1.58∗∗
-1.16
8.08
0.85
0.71
0.38
0.42
1.16
0.10
2.26
0.56
0.92
0.44
0.63
0.84
12.80
-3.41
0.04
1.41
0.24
-1.38
6.48
-0.50
-0.07
0.00
-0.45
2.52
-1.37
0.63
City Ideology
Mayor
House Lower Average
Term Limits
Ln Median Income
Ln Population
Heterogeneity
Partisan Elections
Initiative
Ratio Home Own/Rent
CA
FL
Intercept
Observations
Log Likelihood
Note:Standard Errors Clustered on County
156
-52.25
∗
p<0.05; ∗∗ p<0.01; ∗∗∗ p<0.001
In order to explore the relationship between ideology and preemption cases, an expected counts
plot is featured below. The figure is created by holding all other variables at their observed val1
We are unable to include fixed effects for all states because there are a limited number of observations per state
12
ues while allowing ideology to move across its range of possible values. Although the data is
predominantly composed of liberal cities, Figure 1 demonstrates that the number of preemption
cases reduces as the city becomes more moderate. This does seem to be indicative of a systematic
relationship between city-level ideology and the number of preemptions, even after controlling
for city-level factors. The results indicate that a unit change in city-level ideology decreases the
expected number of preempted ordinances by approximately 94%, holding all other variables constant. The results also indicate that large cities are more likely to have cases preempted. That
is a one percent increase in the population of a city increases the expected number of preempted
ordinances by approximately 0.7%, holding all other variables constant. There does not appear
to be any support for a Mayor-led government influencing the expected number of preemptions.
Therefore, the model offers support for a potential ideological relationship, but finds no evidence
of electoral demand on the expected number of preempted ordinances.
13
Figure 1: Expected Preemption Count Across City-Level Ideology
V.
D ISCUSSION
This paper set out to address the factors that result in a restriction of local autonomy. Although
the data set is limited in size there does appear to be evidence for an ideological relationship with
the expected number of preempted ordinances. Left-leaning cities appear to have more ordinances
preempted, potentially due to feelings of resentment as city residents perceive the state legislature
to not be aligned with their interests.
There are several limitations to this research. First, the nature of data collection may not have
fully captured all cities with preempted ordinances within the time frame. Although great care
was taken to integrate as much data as possible the utilized databases may not have all available
cases. Second, the cities included in the data set were predominately left-leaning. Although a
14
critique can be raised that the results are spurious, as the data may simply give the impression of a
negative correlation. Multiple model specifications were conducted to flush out a potential spurious
relationship. The results remained consistent despite every attempt. Finally, city governments
may potentially be learning from the preemption cases of other cities and thus moderate their
policies. Although local leaders may possibly moderate their behavior, the same may not be true
for city residents. City residents may not be deterred by the preemption of similar ordinances
or neighboring cities’ ordinances. If the policy is strongly preferred by the residents a potential
preemption may not deter their resolve.
Although the theory depicted diverging interests as the driving force behind local ordinances
that are incongruent, we are unable to demonstrate this empirically. By analyzing preemption
counts the paper is limited to analyzing a relationship involving city-level characteristics, as preemptions occur when an affected interest challenges an ordinance in court and not because the
state government has directly rendered an ordinance invalid. An ideal research plan would create
a model that accounts for the number of incongruent ordinances enacted within a given state or
number of states, due to the time intensive nature of gathering such data. This would allow the
researcher to determine whether a divergence in preferences (measured by the absolute difference
in ideology) increases the number of incongruent ordinances. This, however, would require timevariant measures of city-level ideology, which is not easily devised. Future research may be able to
find a means to go about testing this relationship, furthering our knowledge of state-city relations.
Legislative powers grant cities the discretion to institute policies that may address wider systemic concerns, or to protest against state inaction. With the increased attention in the media to the
preemption of specific city ordinances, such as living wage ordinances and transgender bathroom
use ordinances, scholars should devote more time to understanding the factors driving city governments to adopt incongruent policies. This may help further our knowledge on how and why state
governments respond by limiting local discretion.
15
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