The Attack on American Cities

Date01 August 2019
8-2019 NEWS & ANALYSIS 49 ELR 10761
I. Introduction
Cities often test the existing l imits of their regulatory
authority in areas like environmental protection, labor
and employment, and immigration. e last few years
witnessed an explosion of preemptive state legislation
attacking, challenging, and overriding municipal ordi-
nances across a wide range of policy areas. But this hostil-
ity to city government is not new.1 In 1915, one professor
observed that “the relations of states to metropolitan cities
in this country is ‘a history of repeated injuries’ ... [and]
‘repeated usur pations.’”2
is Article’s descriptive goal is to understand how an
institutional system overtly dedicated to the principles of
devolution can be so hostile to the exercise of city power.
Part II describes the twenty-rst century attack on Ameri-
can cities by canvassing preemptive state legislation across
a number of policy areas. Part III tu rns to “Our Federal-
ism’s” anti-urbanism. It describes how state-based federal-
ism hinders municipal power generally, and how the U.S.
Constitution favors rural over urban voters specica lly. Part
IV places this “anti-urban constitution” in the context of
the historic skepticism of the exercise of city power. Finally,
Part V considers the legal and political options available to
cities in responding to these conicts.
is Article is adapted from Richard C. Schragger, e Attack on
American Cities, 96 T. L. R. 1163 (2018), and is reprinted
with permission.
1. See generally G E. F  D J. B, C B: H
S S U I 231 (2008); G E. F,
C-M: B C W B W 5
(1999). is Article’s attention to constitutional anti-urbanism comple-
ments that work.
2. Robert C. Brooks, Metropolitan Free Cities, 30 P. S. Q. 222, 222
II. Conf‌lictual Federalism: A Review
of State-Law Preemption
A. Industry-Specif‌ic Preemption
A range of specic industries sought and successfully lob-
bied for state preemption of local regulations. For exam-
ple, certain materials u sed regularly by businesses, such a s
plastic and Styrofoam, have invited statewide preemptive
legislation. States like Ariz ona, Idaho, and Missouri have
explicitly preempted localities from banning plast ic bags,3
and Florida has preempted the regulation of Styrofoam.4
Similarly, as of 2013, explicit preemption language target-
ing local pesticide regulation was adopted in 29 states.5
Other local environmental regulations also invited state
opposition; Oklahoma and Texas specically preempted
local regulation of hydraulic fracturing, or frack ing.6
B. Local Author ity Preemption
In addition to preempting local laws that seek to regu-
late private businesses, states have also preempted local
authority in areas that come closer to the traditional core
of municipal authority: revenue raising and spending.
States dramatically limit localities’ tax and spending abili-
ties through tax and expenditure limitations. irty-four
states, as of 2015, imposed property ta x rate limits on
localities.7 Land-u se regulation a nd schools are other topic s
of traditional local concern that have seen recent preemp-
tion activity. Local immigration issues also elicited state
3. State Plastic and Paper Bag Legislation, N’ C. S. L,
4. F. S. §500.90 (2017) (preempting local regulation of polysty-
rene products).
5. M P, S P L: T B  L C-
  D,
6. See, e.g., O. S. tit. 52, §137.1 (2017) (eective Aug. 21, 2015).
7. Signicant Features of the Property Tax: Tax Limits, L I. L
The Attack on American Cities
by Richard C. Schragger
Richard C. Schragger is the Perre Bowen Professor and Joseph C. Carter Jr. Research
Professor of Law at the University of Virginia School of Law.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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