Preemption laws prevent cities from acting on everything from labor and employment to gun safety // Blog | Economic Policy Institute
On Valentine's Day, a 19 year-old with a legally purchased AR-15 assault rifle stormed into Marjory Stoneman Douglas High School in Parkland, Florida and murdered 14 students, and 3 educators. In Florida, an AR-15 military-style assault rifle is easier to buy than a handgun. Understandably, many of the students who survived the mass shooting and the families of the 17 victims have called for a change in the law, arguing that it shouldn't be so easy to legally purchase weapons that powerful. I write here not to weigh in on the merits of any given gun law, but to comment on the process of advocating for legislative change, and the challenges at the local level with the preemption laws on the books.
In terms of advocating for a change in federal law, Congress's ban on AR-15s and other semiautomatic assault weapons expired in 2004, and federal lawmakers have not been able to pass a similar ban since.
In terms of advocating for change in state law, dozens of Florida high school students recently loaded onto buses and drove to the Florida state capital to lobby for a bill banning assault rifles, which was voted down by the state's House of Representatives.
In terms of advocating for a change in gun laws at the city and county level, the students, families of the victims, or anyone else won't even have a chance because of Florida's preemption law. "Preemption" in this context refers to a situation in which a state law is enacted to block a local ordinance from taking effect—or dismantle an existing ordinance.
Florida's 2011 amendment to its gun preemption law is unique: Not only does it prohibit local governments from regulating guns, it allows punitive measures against local elected officials for even trying. In Florida, local elected officials on city councils or other municipal bodies are subject to personal civil penalties of up to $5,000, can be sued and held personally liable for damages of up to $100,000, and even removed from office at the discretion of the governor. And, the preemption law requires elected officials to pay their own attorney's fees if they are sued.
In 2017, for example, Tallahassee Mayor Andrew Gillum was sued personally by gun advocates while he was still a city commissioner after he cast a symbolic vote against repealing a local ordinance that banned shooting firearms in the city's public parks (his vote was only symbolic because Florida's preemption law had already nullified the ordinance years before). His legal defense costs for simply casting a vote totaled $200,000, but he was able to find attorneys to do the work pro bono.
Arizona's punitive gun preemption law requires the county, city or town to "post a bond equal to the amount of state shared revenue" whenever the state attorney general files suit against the local government for an alleged violation of Arizona's gun preemption law. In 2017, the city of Tucson nearly ground to a fiscal halt when the state attorney general sued the city for its practice of destroying unclaimed or forfeited firearms. As required by the preemption law, the city's bond amount would have totaled $55,639,999.37, and the city stated in court that it "could not post a bond at or near that amount as it would exceed the sum total of the city's available reserves by nearly $5 million." The state declined to enforce the bond requirement in this case, but required the city to resell the unclaimed firearms instead of destroying them.
Of course, it's not just gun laws. State governments have begun blocking local government efforts to give workers the opportunity to earn paid sick days or raise wages through the use of preemption laws.
Pay for the vast majority of America's workers has been stagnant for decades. One of the simplest ways to accelerate wage growth for low- and moderate-wage workers is to raise minimum wages. In 2015, for example, the citizens of St. Louis tried to address what, in the city government's own words were, the city's problems of "rising income inequality" and "the obstacles preventing people from rising into the middle class" by raising the minimum wage.
In terms of advocating for a federal change, Congress last raised the minimum wage in 2009 to $7.25, and hasn't raised it since.
In terms of advocating for state law to change, Missouri's minimum wage was last changed in 2006 and has barely budged to just $7.85 (and it's rising slowly only because of an automatic index to rise with inflation).
In terms of advocating for change at the local level, the residents of St. Louis were able to make a change—for a little while. By passing its local ordinance in 2015, St. Louis sought to raise the minimum wage to $8.25 for many employees working within the city limits, with scheduled increases to $9 in 2016, $10 on January 1, 2017, and $11 on January 1, 2018.
But the City of St. Louis's victory was short-lived, because in 2017 the Missouri state legislature passed a minimum wage preemption law that nullified the local ordinance, lowering the St. Louis minimum wage from $10 back down to the state's minimum of less than $8 per hour, undercutting wages for at least 38,000 workers.
With inaction on raising working standards at the federal and state levels, many advocates turn to their local governments to address the needs of workers within the city limits. But these preemption laws are lowering labor standards at the local level, and certainly do not help improve the standard of living for the people living in our towns, cities, and counties who are trying to change their circumstances for the better.
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