Local Control vs. Preemption: The Who, the What, and the Why You Should Care

For the last few years, I have written about the topic of local control as it pertains to the St. Louis City and Kansas City Police Departments, pushing back against state legislators who want to take control of the St. Louis Metropolitan Police Department and expand their control over the Kansas City Police Department. However, as I have spent time in the Capitol over the last several weeks, it has occurred to me that the issue of local control is actually at the very heart of MANY issues being debated by our legislators today. So, today, we’re going to get a little wonk-y with the Weekly Perspective and break down the topics of local control and preemption. I’ll do my best John Oliver impression and try to pepper in a bit of humor to spice up a topic that can be a little bland, but is critical to understanding how our government is supposed to operate.

The term “local control,” when used in a governing context, refers to local (city or county) government control over a set of policy decisions.  The term is used a lot when discussing education, as each school district is (theoretically) governed by its own locally elected school board that makes decisions about the education provided to children living in that district. It is also frequently used where discussing housing regulations, as decisions about zoning and land use have typically been managed by local governments. As previously mentioned, it is regularly used in Missouri to discuss the issue of policing when it comes to our two largest population centers. However, as clashes between local governments and state governments, as well as state governments and the federal government, become more frequent in recent years, the topic of local control has become increasingly important to understand. 

The heart of the principle of local control is that the people who are closest to an issue should make the decisions related to that issue because they generally have the most information about the topic. This is a principle employed by many nonprofit organizations, Empower Missouri included, who attempt to center the voices of people personally impacted by the problems the organization is attempting to solve. It’s a wise principle developed after centuries of people in power wasting precious resources by imposing “solutions” on communities without truly understanding their problems. It would be like if a lifelong vegetarian showed up to your BBQ and dictated how to season and sear the meat– the end result probably wouldn’t be very good.

So, why aren’t all policy decisions made by local authorities? There’s actually a few good reasons for that, but I’ll start you out with just two of the simplest ones. 

First of all, it would be utter & complete chaos. Missouri alone is composed of 115 counties, and nearly 1,000 municipalities. In some parts of the state, you can drive 10 miles and cross through five different municipalities. Can you imagine if all of the rules changed every time you crossed a municipal, or even a county, border? In order to create laws that everyone can follow, there has to be some consistency that allows people to travel within states and across the country with a general understanding of the rules that they are supposed to obey. 

Second, the US Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So, what the heck does that mean? This sentence (Article VI, Paragraph 2) is commonly referred to as the Supremacy Clause, and it establishes that the Constitution and federal law take precedence over state laws. 

I sat in on a fascinating hearing this week in the House Special Committee on Homeland Security (didn’t know we had one of those until this week– seriously, why do we have this?!) where legislators and advocates debated legislation that would create new criminal penalties for undocumented individuals in Missouri. Advocates raised the Supremacy Clause over and over again, insisting (correctly, I believe) that the Supremacy Clause dictates that immigration policy is exclusively entrusted to the federal government, and Missouri has no standing to write our own policies pertaining to immigration. The Constitution guarantees every American (and others residing within our borders) certain rights, and the Supremacy Clause ensures that no lower governmental body can pass policy that infringes upon or conflicts with those rights. 

However, the federal government only has control over certain sets of policies. The Tenth Amendment says that the federal government only holds powers that are explicitly named in the Constitution. If it isn’t listed, the authority to set policy falls to state or local governments. Each individual state’s constitution provides guidance on what powers are reserved for the state, and what policies can be set locally. In Missouri, Article VI, Section 19(a) says: “Any city which adopts or has adopted a charter for its own government, shall have all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute. Such a city shall, in addition to its home rule powers, have all powers conferred by law.”  Essentially, if it doesn’t conflict with state law, the local government controls it. According to the National League of Cities (NLC), “home rule” is a longstanding legal principle that gives local governments “the power to decide which services we provide, the policies we implement, and the ways we solve problems.” 

(Hang in there with me. We’re just getting to the good stuff. Here are some cute sloth pictures to reward you for making it this far!)

The flip side of local control is preemption. According to NLC, preemption is “the use of state law to nullify a municipal ordinance or authority.” According to a 2018 NLC report entitled “City Rights in an Era of Preemption: A State-by-State Analysis,” state legislatures have gotten more aggressive in their use of preemption in recent years. There are many potential explanations for this, including lobbying by special interest groups and single-party dominance in most state governments. The report points out that 26 states have state legislatures fully controlled by the Republican party, while most major cities are governed by Democrats. Increasing political polarization and tensions between the two parties have created more clashes between local governments and state governments across the country. 

Here in Missouri, we’ve seen a number of cases of preemption in the last decade. In 2015, Columbia considered enacting local restrictions on the use of plastic grocery bags, and the Missouri legislature passed legislation to ensure that localities couldn’t regulate these items, which some see as harmful to the environment. Also in 2015, St. Louis City voters approved a municipal minimum wage increase to $10/hour, while the state’s minimum wage was stalled at $7.70. But, in 2017, the state preempted the increase, passing a new law that no locality in Missouri could enact a minimum wage higher than the state’s minimum wage. This pushed activists to gather signatures for a ballot initiative to raise the minimum wage statewide in 2018, which voters passed overwhelmingly. The NLC report referenced above reports that Missouri has also passed preemptions related to paid leave, ride-sharing services such as Lyft and Uber, municipal broadband programs, and tax and expenditure limitations.  

Missouri’s regulations are extensive when it comes to the latter, many of which are wrapped up in the state’s so-called Hancock Amendment (Article X, Sections 18-24 of the Missouri Constitution), passed by voters in 1980. It’s a complicated set of regulations that probably deserves its own Weekly Perspective, but relative to the topics of local control and preemption, there are two primary components. First, it says that the state legislature can’t shift funding responsibilities from the state level to the local level– essentially, the state can’t require localities to enact programs unless the state also provides the requisite funding. Second, it says that voter approval is required for any new tax (or increase on current tax rate) levied by localities, and in most cases, the legislature must provide authorization for the local government to even put a new tax on the ballot. I ended up listening in on an absurd hearing this week in which the City of Cottleville, population 5,761, was seeking permission from the legislature to put a “transient occupancy tax” on their local ballot, seeking new tax revenue from a five-room inn in the locality. It was definitely an excellent use of everyone’s time. 

So. You’ve made it this far. What’s the key takeaway? Was I just in a history-professor-sorta- mood this week? Or is there a point to all of this? 

The point is this: the issue of local control vs. preemption is likely to come up more and more in the years ahead, and it is important for informed citizens to form an opinion. One of the most challenging facets of this debate is that there are many politicians who don’t hold a clear stance on the issue– they support local control when it benefits their beliefs, and they support preemption when it benefits other beliefs they hold. In an election year, we should ask those who seek to become (or retain their status as) policymakers about their views on local control and preemption, and we should hold them accountable to their positions. If law enforcement should be managed at the local level, as it is in 99.9% of localities nationwide, then the state should relinquish its hold on the Kansas City Police Department and reject any attempts to put the St. Louis Metropolitan Police Department under state control (SB 808 and HB 1481). If law enforcement should be managed by the state, then every police department in the state should be managed that way. 

If housing laws should be managed at the local level, as they predominantly are in the state, then the legislature shouldn’t pass SB 895, a proposed law that would remove the ability for localities to impose an eviction moratorium during times of natural disasters or public health emergencies. Similarly, the legislature would also have to reject HB 2385, a proposal designed to preempt a new Source of Income Discrimination Ban recently passed by the Kansas City Council, giving landlords across the state the ability to discriminate against low-income individuals and families with Housing Choice Vouchers. On the other hand, the legislature should pass SB 750 and HB 2065, which would authorize any locality in the state who wants one the ability to start a land bank, a key tool for processing blighted properties, giving local authorities the ability to deal with the over 350,000 vacant housing units statewide in desperate need of repair and reutilization.

As for us at Empower Missouri, we’re believers in the power and importance of local control– for better or for worse. You’ll see us advocating on these issues all session long! Join us and follow along on social media or by subscribing to our newsletter or our weekly podcast, Under the Dome. We’ll be regularly highlighting how the topic of local control vs. preemption intersects with our policy priorities, and we’ll even have a special session on the topic during our Week of Action. Sign up today!