Written By Sheila R. Foster, SALPAL Faculty Advisor

The COVID-19 crisis has shown dramatically why local government, where mayors and health officials are on the frontlines of responding to global health threats like pandemics, is increasingly where effective governance happens in America.  But as the nation’s mayors flex their muscles, they sometimes run into conflict with governors, who have primary authority in a public health emergency under most state laws. We’ve seen that this week, but also have seen how a proactive response by mayors can drive policy change at the state level. After all, viruses don’t respect city limits. 

South Carolina’s governor issued a stay at home order this week but only after the state’s two largest cities had done so. The cities of Charleston and Columbia, South Carolina issued stay at home orders in late March in an attempt to slow the spread of infections from the coronavirus and out of  frustration that state officials were refusing to put in place such orders. The Governor indicated that he did not believe a statewide order was necessary.  Next, the Attorney General of South Carolina issued a written opinion questioning the legality of the city orders, and arguing that only the Governor can use such emergency powers to issue a shelter-in-place order anywhere in the state.  The Mayor of Columbia pushed back, standing by his City Council’s vote to impose the order. The Mayor argued that the order was within the city’s authority and did not conflict with state law since the state had not taken any action anywhere in the state. In other words, cities like his were simply stepping into the breach created by state inaction when faced with a public health crisis.

This was not the only tension between mayors and governors over the last few weeks as officials at every level of government decide how best to respond to the pandemic unfolding across 50 states. Most states have now put in place some form of stay at home order and many have done so only after their most populous cities and counties have done so.   When these states issue orders, they often are written to “preempt” or supersede existing, stricter local orders. In Georgia, for example, the governor recently signed an Executive Order superseding any previous local “shelter-in-place” order, effectively reopening beaches that had been closed under those previous orders. Similarly, Florida’s governor recently amended his state-wide “safer-at-home” order to supersede “any conflicting official action or order issued by local officials in response to COVID-19.” Mississippi’s governor also signed an Executive Order that supersedes all local restrictions previously put into place. Most recently, the governor of Arkansas barred cities from putting in place any quarantine orders and denied a request by the mayor of Little Rock to impose a stay at home order in his city.

Tensions between governors and mayors, like tensions between governors and the federal government,  are a feature of our federalist system in which power is divided and shared by the federal government with states and localities. The problem for mayors, is that under the US Constitution, they have far less power than governors. The Tenth Amendment to the U.S. Constitution reserves “to the States respectively, or to the people” all powers not specifically delegated by the Constitution to the federal government. In turn, states have the option to delegate powers to their localities–and many have– often reserving their rights to supersede or “preempt” local laws. Notably, there is no mention of local governments in the federal constitution.   

The power of local governments—including cities, counties, and towns— is therefore dependent on the authority given to them by their respective states. In legal terminology, this power is either restricted under “Dillon’s Rule” (named after Judge John Dillon) or more expansive according to “Home Rule” authority.  According to Dillon’s Rule, a local government can exercise only those powers explicitly granted to them by the state government. If there is any doubt as to which powers are given to local governments, the presumption is that they lack the power to act. Home Rule, on the other hand, is a constitutional or statutory delegation of local autonomy and limits the degree of state interference in local affairs. The scope of home rule authority varies from state to state, but localities that have it tend to exercise it and test its powers in areas ranging from local gun control measures to minimum wage laws to bans on trans fat in retail food sales.  

There are very few “pure” Home Rule or Dillon’s Rule states, meaning that few apply one rule to every local government. Most states are hybrid states in which both Dillon’s Rule and Home Rule apply to different local governments or to different functions of local governments. Local governments eligible for home rule in these hybrid states tend to be populous cities and counties, and often must either be legislatively granted home rule or must enact a self-executing local home rule charter. 

It is no surprise, then, that some mayors that have stepped out in front of their states in imposing stay-at-home order are operating under Home Rule authority.  This authority gives them the power to adopt and enforce local policies that promote the safety, health, and welfare of their residents. Yet, Home Rule authority is subject to a simple limiting principle—the power that states give to their localities can be taken away.  Preemption is the mechanism through which states take back power in a particular field of regulation, or over a specific subject matter that has statewide implications or effects. 

Preemption has gained a new valence during this time of heightened political polarization. Tensions between governors and mayors have escalated in past few years with the tendency of republican-leaning state legislatures to preempt and even punish democratic-leaning local governments for enacting policies such as designating themselves as a “sanctuary city” to shield their undocumented immigrant population from the harsh deportation practices of the federal government. Mayors pushing progressive agendas are increasingly running into a wall of conservative state resistance through what some view as aggressive, and even “nuclear”, state preemption.  There are hints of resistance that runs the other way as well, with more conservative cities and counties enacting “second amendment sanctuary” resolutions in response to the adoption of stricter gun controls by more progressive state legislatures. 

This tension is manifesting itself in the COVID-19 context as well.  In most cases, it is republican controlled states pushing back against, and preempting, blue localities stay-at-home orders, as in South Carolina.  But partisanship is not the only issue. Take New York, for example. Although Governor Cuomo has been widely hailed for his leadership during this crisis, It was the Mayor of New York City, Bill DeBlasio, who first called for “shelter-in-place” order similar to what had already been implemented in San Francisco.  Governor Cuomo resisted the Mayor’s suggestion, noting that fear and panic was as dangerous as the virus and suggesting instead for a more gradual shutdown. It wasn’t until California Governor Gavin Newsom ordered a state shutdown, following on the heels of San Francisco Mayor London Breed’s local order, that Governor Cuomo finally relented and ordered the state of New York to shelter in place. The New York and California leaders all are Democrats.

While it is easy to look at partisan tensions to explain the actions of the governors, there are structural issues as well related to the extraordinary nature of this particular public health emergency.  Most, if not all, states give governors broad emergency powers. These include the power to declare a statewide emergency and to trigger waivers of existing rules and regulations, as well as to deploy resources and exercise other powers to be able to respond to the specific emergency. The South Carolina Attorney General argued that a patchwork of local laws that conflict with a statewide order would create confusion and anxiety. But until there was a statewide order, there was no pre-emption, and  the mayors were free to set their own course. The Mayor of Columbia’s position that localities can act in the absence of state action does not cut against the Attorney General’s preemption argument. In the final analysis, both the Mayor and the Attorney General are correct. 

In the absence of state action, local governments that have Home Rule authority can exercise that authority to put in place orders that protect the health, safety and welfare of their residents. In other words, cities can step into the breach before state authorities exercise their authority in an emergency. However, once the state has acted and set the terms of a statewide response, local governments must essentially step aside. The state’s action, and the scope of its action, effectively preempts local action by occupying the emergency field during the crisis at hand. This strikes the right balance by giving power to localities, particularly those densely populated urban centers likely to contribute to the risk of disease spread, to institute measures to protect their residents. At the same time, it preserves the right of states to occupy the field of responding to a particular emergency, especially when the emergency traverses local government boundaries and poses a risk to the entire state as the COVID-19 crisis does. 

The governance of infectious diseases has a long history going back to the quarantine measures put in place by Venetians centuries ago.  Today, networks of Mayors around the world are sharing information and evidence-based strategies for responding to public health threats in urban environments.  U.S. Mayors should be able to bring those best practices home and have the authority to implement them as part of a system of federalism in which subnational governments are the “laboratories of democracy,” as Supreme Court Justice Louis Brandeis said of state governments almost a century ago.  Instead of preempting mayors, state leaders should view the actions put in place by mayors as opportunities to coordinate responses and for collaborative policymaking. Whether acting independently or collaboratively, mayors play an indispensable role in responding to global threats like pandemics and in improving our collective ability to withstand these threats.

Sheila R. Foster is SALPAL’s Faculty Advisor and is the Scott K. Ginsburg Professor of Urban Law and Public Policy at Georgetown University (joint appointment with the Law School and the McCourt School of Public Policy) . Professor Foster teaches and writes in the areas of property, state and local government law, and urban law and policy.