While COVID-19 can be deadly for anyone, it is especially dangerous when it hits people with preexisting conditions. People with diabetes, hypertension, and kidney disease are far more likely to suffer serious complications from the illness than healthy peers. In New York, roughly ninety percent of people who died from COVID-19 had a chronic condition. As a result, the coronavirus has disproportionately killed the poor and people of color, who are exposed to more dangerous work environments, cannot afford health care, and lack access to nutritious food.
In the fight to improve public health, policymakers will have to tackle many related challenges, from structural racism to a broken medical system. But one of the most overlooked obstacles to creating a healthier America is preemption: where one level of government restricts or eliminates a lower level of government’s authority over a certain issue. For decades, progressive municipalities have tried to pass laws that better protect the health of residents. But with increasing frequency, red states seeking to rein in blue cities have stopped them from doing so. As a result, much of America is far more vulnerable to COVID-19 than it otherwise might be.
Traditionally, preemption was viewed as a politically neutral doctrine of federalism, used to resolve inter-governmental disagreements. But in the 1980s, as tobacco taxes and smoke-free ordinances popped up in cities all over the country, the tobaccoindustry began pushing states to outlaw these regulations, oftenproactively. The strategy worked, and other industry groups caught on quickly. Since the Tea Party-infused GOP swept the 2010 midterms, the party has overridden a range of citywide decisions aimed to improve health and well-being.
Take paid sick leave. Cities that mandate paid sick time are better equipped to stem transmission of COVID-19 and ease the financial burden for at-risk workers. Unfortunately, today,more than 40 percent of workers live in states where local paid sick time ordinanceshave been preempted. Twenty years ago, that percentage was zero. Nearly all of these states passed their laws while under Republican control. Since COVID-19 hit, Congress has passed legislation designed to make more Americans eligible for paid sick leave. But it includes sweeping exemptions that mean many small businesses, and almost all large businesses, don’t have to provide paid time off. Meanwhile, one poll showed that 80 percent of Republican voters nationwide actually favored paid sick leave laws.
COVID-19 has exposed the lack of protections for gig workers and independent contractors. Their vulnerability has also been exacerbated by state preemption. In the last five years, 44 states have banned local regulations of transportation network systems, which (among other things) precludes cities from requiring that Uber and Lyft provide health and unemployment benefits to drivers. Both ride-share titans eventually offered up to 14 days of paid sick leaveto drivers who contract coronavirus or are quarantined by a public health agency. But the announcement came too late for many, and advocacy groups are understandably skeptical the benefit will be extended post-crisis.
The U.S. has also seen a rise in state action against local ordinances proven to curb diabetes, obesity, and respiratory problems. Consider soda taxes. Since Berkeley, California passed the nation’s first local tax on sugar-sweetened beverages six years ago, the public health community has been pushing for local soda taxes to disincentivize unhealthy consumption choices. These laws were also designed to bring in funds that would help improve the health of groups particularly impacted by chronic conditions, such as predominantly black and Hispanic communities. Berkeley’s law was considered a success, and was soon emulated by other California cities, as well as Boulder, Chicago, and Philadelphia. But in response, large beverage companies mobilized to stop these laws from spreading. Now four states—California, Arizona, Michigan, and Washington—bar local soda taxes.
Beyond soda taxes, eight states have preemption laws that limit local control over other aspects of nutrition, such as portion sizes and promotional games and toys. According to Grassroots Change and Preemption Watch, these laws resulted from aggressive, costly lobbying efforts by food and beverage industry groups to limit local control over nutrition and food policy. Ten states prohibit localities from regulating e-cigarettes.
It’s no surprise, then, that research links modern preemption laws to lower life expectancy. Jennifer Karas Montez, a sociologist at Syracuse University, found that the difference in life expectancy between Mississippi, where the government has consistently preempted local health-boosting measures, and New York, which hasn’t, grew from 1.6 years in 1980 to 5.5 years in 2018. Montez suggests that state preemption laws, in conjunction with deregulation and devolution initiatives, can help explain the divergence.
In the wake of COVID-19, the GOP (which has long falsely claimed to be the party of place-based decentralized control) is singing the praises of local rule. Republican governors in Florida, Texas, Missouri, and Georgia, and others are loudly deferring to cities and counties on many decisions related to pandemic response (while simultaneously begging the federal government to hand down clear directives and aid). When Texas Governor Greg Abbott called for a localized, patchwork response to coronavirus, state preemption expert and Columbia law professor Richard Briffault said that he “neary fell out of his chair.”
In some cases, it’s too late to repair the damage states have done to their citizen’s health through preemption. But it’s not too late to protect their residents in the future. States that have aggressively preempted progressive local legislation should see this crisis as an opportunity to restore functional relationships between state and local governments, and to recognize cities as essential laboratories of innovation, before the next crisis comes.
