Joshua Sellers and Erin Scharff have posted this draft on SSRN (forthcoming, Stanford Law Review). Here is the abstract:
States are increasingly responding to local governments’ actions with preemptive legislation. Scholars have tracked this trend through detailed examinations of laws preempting a variety of local government regulations. This Article analyzes a distinct instantiation of state preemption: states’ preemption of local governments’ structural authority, which we term “structural preemption.” Structural authority refers to the autonomy of local governments to design and modify their government institutions and the terms of local political participation. Structural preemption raises fundamental concerns about democratic design, political entrenchment, and political participation that directly implicate democratic outcomes.
The Article proceeds as follows. Part I provides background on local authority and state preemption generally, with a particular focus on state preemption’s recent substantive manifestations. It then discusses structural preemption specifically and why it presents distinct issues. The Part closes with a brief overview of structural preemption doctrine. Part II documents recent structural preemption bills proposed in or enacted by state legislatures. Part III explicates four values as paramount when thinking about structural preemption:
(1) administrative cost,
(2) democratic accountability,
(3) democratic deliberation, and
Part IV then bolsters the normative case for these four values by considering their application in two structural preemption contexts.