Preemption

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Essay
Volume 91.8
Post-Emption and the Mayoral Toolbox: Levers and Limits of City Resistance to State Preemption
Quinton D. Lucas
Mayor, Kansas City, Missouri.

Several individuals provided support and insight without which this Essay would not have been possible. Morgan Said’s administrative and political genius deserves credit for many of Kansas City’s successes, and this Essay is no exception. Others in the mayor’s office contributed time and critical thought, including Reid Day and Melesa Johnson. Nicholas Hine’s strategic assistance helped get this piece across the finish line, and Jack Wolverton’s diligent research assistance was fundamental in compiling data and references. Discussions with the exceptional students and faculty at the University of Kansas School of Law helped us refine our local government experiences for an academic context. Lastly, heartfelt thanks to the editors of the University of Chicago Law Review—particularly Aleena Tariq, Adrian Ivashkiv, and Helen Zhao—for their meticulous substantive and technical edits.

Gavriel Schreiber
General Counsel to the Mayor of Kansas City, Missouri.

Several individuals provided support and insight without which this Essay would not have been possible. Morgan Said’s administrative and political genius deserves credit for many of Kansas City’s successes, and this Essay is no exception. Others in the mayor’s office contributed time and critical thought, including Reid Day and Melesa Johnson. Nicholas Hine’s strategic assistance helped get this piece across the finish line, and Jack Wolverton’s diligent research assistance was fundamental in compiling data and references. Discussions with the exceptional students and faculty at the University of Kansas School of Law helped us refine our local government experiences for an academic context. Lastly, heartfelt thanks to the editors of the University of Chicago Law Review—particularly Aleena Tariq, Adrian Ivashkiv, and Helen Zhao—for their meticulous substantive and technical edits.

States increasingly deploy aggressive preemption measures against disfavored localities. Scholars have raised the alarm, but cities’ subordinate legal status leaves them disempowered. To push back, municipal advocates need to thoroughly understand the complex bilateral relationship between cities and their states.

That is where I come in. As Mayor of a progressive city in a conservative state, I swim in the hostile symbiosis that characterizes city-state relations. By drawing on real-life examples, closed-door conversations, and previously private documents, my coauthor and I demonstrate the potence of multi-pronged city power. We synthesize our stories into a thicker account of state motivation, and then showcase the city’s “toolbox” for limiting state preemption.

That process unearths preemption’s next frontier. Post-enactment state preemption, or “post-emption,” occurs when a state retroactively nullifies a specific, already-passed municipal law. It has been widely acknowledged but not individually distinguished. Analyzing it independently reveals that it is already ubiquitous and likely to proliferate. Post-emption thus warrants individualized normative assessment, and this Essay begins that surprisingly nuanced discussion.