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Pandemic Backlash Leaves Cities With Less Decision-Making Power

July 19, 2021, 9:45 AM

Leading cities through the biggest public health crisis in a century has come with a lasting side effect for mayors: state clampdowns on their authority to address the next emergency.

Legislators in more than a dozen states passed laws in recent months dismantling the ability of city and county governments to mandate masks, shutter businesses, and require vaccines. Many communities already lifted restrictions aimed at slowing the spread of Covid-19, but lawmakers pushing the measures say they don’t want local leaders to have those options in the future.

The power struggle amplifies a broader trend of state preemption, in which primarily Republican-led legislatures limit how left-leaning cities regulate issues like guns, minimum wage, and rent control. The pandemic added public health to the debate, and the new laws raise concerns that cities in states including Arizona, Florida, and Montana will be powerless to address Covid-19 variants and other emerging issues.

“Our hands are tied and I think that’s a mistake,” said Dr. Shad Marvasti, associate professor at the University of Arizona College of Medicine—Phoenix.

Local Transparency

In Arizona, Democratic mayors in Phoenix and Tucson verbally sparred with Gov. Doug Ducey (R) last year over closing businesses and requiring masks as Covid-19 cases spiked. Ducey temporarily let cities pass mask mandates but in June signed a law (S.B. 1819) to prevent local governments from passing Covid-19 mitigation measures that impact any private entity—including businesses, schools, and churches.

Proponents of the local limits argue government overreach proliferated during the pandemic, and that prolonged restrictions crush businesses.

Florida Gov. Ron DeSantis (R) in May signed a law (S.B. 2006) to that end that caps the length of local emergency orders and lets the governor invalidate any local order that “unnecessarily restricts individual rights or liberties.”

Florida Gov. Ron DeSantis (R) places his mask back on after speaking during a press conference about the opening of a Covid-19 vaccination site at the Hard Rock Stadium on Jan. 6, 2021.
Photo by Joe Raedle/Getty Images

The law also provides legal safeguards to prevent arbitrary closures by local governments, DeSantis said in a statement. He nullified all local Covid-19 emergency orders the same day.

Missouri Gov. Mike Parson (R) cited municipal accountability when he signed a law (H.B. 271) limiting how long cities, counties, and other local governments can shutter gathering places like businesses or churches unless local leaders vote to extend the closures. The law also forbids local governments from requiring proof of vaccination to access public services.

The law “requires local leaders to be more transparent in their reasoning” concerning public health orders, Parson said.

Bureaucracy Concerns

The new laws, though, add time and effort to decision-making, which could have deadly consequences, said Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials. The impacts of some laws could go beyond the pandemic and hamper other health responses, like a school addressing a measles outbreak, she said.

“More time means more people becoming sick, more people dying,” Freeman said.

Covid-19 is a moving target from a public health perspective, and flexibility is crucial, Marvasti said. When local governments, schools, and universities are stripped of power to make decisions, “then you’re going to get outbreaks that can’t be controlled properly,” he said.

“I don’t see the scientific or public health basis,” Marvasti said. “It seems to be completely politically motivated.”

Mayor Rick Kriseman (D) of St. Petersburg, Fla., questioned how many lives would have been lost to Covid-19 in the state without intervention by local leaders. Florida’s new law to invalidate local orders is about power, he said on Twitter the day DeSantis signed it.

“To be clear, cities like St. Pete, Tampa, Orlando, Miami and Miami Beach, saved Florida and the governor’s behind throughout this pandemic,” Kriseman (D) tweeted.

Republican governors in Indiana and Ohio agreed that city and county leaders need the flexibility to quickly address health crises. They vetoed bills in recent months that proposed limits on local health mandates.

Ohio Gov. Mike DeWine (R) warned in his veto letter that the changes could affect how the state responds to other illness, such as a Norovirus outbreak at a restaurant or signs of a person contracting Ebola. Republican lawmakers in both states, though, overrode those vetoes.

‘Billy Club’

State lawmakers have increasingly used preemption as a “billy club” to thwart local governments, said Neil Kleiman, an urban policy professor at New York University. Fights over whether state law should rule over local control tend to grow out of tension between Republican-led legislatures and Democrat mayors that differ in their approaches to labor rights, energy consumption, or police interactions.

“In an age of partisanship, it increases the likelihood you’re not going to get along,” Kleiman said.

Grievances against city and county governments this year extended beyond health orders, with Florida cities losing the ability to restrict the kinds of energy that power new construction and local governments in Georgia now unable to handle police funding as they see fit. The pandemic also highlighted preemption debates among members of the same party, with Democratic city leaders going head-to-head with governors in New York and California over who should set policy.

State policymakers should have a bias toward community control, said Tony Woodlief, executive vice president of the State Policy Network, a free enterprise group that works with state think tanks. But the violation of constitutional rights by a local government is a reason for states to step in, he said.

To contact the reporter on this story: Brenna Goth in Phoenix at bgoth@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Gregory Henderson at ghenderson@bloombergindustry.com

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