From the abstract:
The current outbreak of severe acute respiratory syndrome coronavirus (SARS-CoV-2), the virus that causes Coronavirus Disease 19 (COVID-19), has spurred a large governmental response from all levels of the U.S. intergovernmental system. The emergency and disaster response system of the United States is designed to be bottom-up, meaning responses are intended to begin at the local level with state and federal governments stepping in to assist with resources and oversight as needed (Rubin and Barbee 1985; Schneider 1995, 2008). The response to the current outbreak, however, has been something else entirely, as each level of government competes with the others over dwindling resources and the authority to respond to the crisis.
We examine how the U.S. intergovernmental system of emergency response is designed, how state and local governments have responded to the COVID-19 crisis thus far, and how this crisis has further exposed tensions in the state-local intergovernmental system. We use the National League of Cities’ (2020) COVID-19 Local Action Tracker to examine city and state responses to the pandemic. We argue state-local intergovernmental response is associated with many issues related to intergovernmental relations broadly, particularly conflict about the “best” emergency services provider. This leads some states to prefer a local response with state support and other states to prefer a more uniform, state-mandated response enabled by state preemption of local actions. The latter has revealed an often-dormant means of state preemption of local ordinances: the executive order preemption. Accessible through the emergency powers afforded to U.S. governors, this type of preemption is uncommon because it is overshadowed by legislative and judicial preemptions. This article seeks to explore descriptively the prevalence of executive order preemptions and discuss the implications of these preemptions in the context of the ongoing COVID-19 pandemic. These preemptions vary in their content, with some representing policy minimums, others maximums, and some a combination of the two. Yet all types of preemption have substantial effects on what local government administrators can do to respond to their constituency’s needs. Such constraints, when out of alignment with local needs, can be challenging in normal times but are potentially catastrophic in emergencies. Administrators will need to be creative in balancing responsiveness to their constituents within such a limiting policy environment.