Raising the Cost of Control: How Local Governments Resist State Preemption
Kathleen Nganga (St. Olaf College)
Minimum wage. Rent control. Fracking regulation. Public political memory. Who has the right to shape the policies closest to home? The intuitive answer—that those closest to an issue should have the most say—runs directly into the reality of American federalism, which distributes authority across federal, state, and local governments in ways that are overlapping, contested, and often anything but harmonious.
Preemption is one of the sharpest tools in that contest. It occurs when higher-level governments pass laws restricting the policy authority of lower-level governments (Fowler and Witt 2019; DuPuis et al. 2018). We tend to notice it most when federal and state governments clash—think battles over Medicaid expansion or, more recently, the surge of federal Immigration and Customs Enforcement units into states like Minnesota without state request or consent. But equally consequential conflicts play out between states and their own local governments, often with less public attention.
These state-local conflicts carry distinctive stakes. Unlike state governments, which can invoke the Tenth Amendment in disputes with the federal government, local governments have no constitutional standing of their own. Courts have long held that cities and towns are "creatures of the state," possessing only the authority their states choose to grant them (Payson 2021; Richardson et al. 2003; Kossis 2012). On paper, when a state wants dominion over a policy area, its position prevails.
And yet, it often doesn't. Dallas maintained its mask mandate during the COVID-19 pandemic despite explicit threats from the Texas governor (Yager 2021). When Memphis moved to remove Confederate monuments from public land amid national debate over their place in public memory, state law stood in the way. So, in 2017, the city sold the park containing those monuments to a nonprofit, which then removed them (Connolly and Wang 2017). These cases suggest that formal legal subordination does not fully determine policy outcomes. Some localities manage to maintain, regain, or even extend their preferred policies against state opposition. Why?
The Maine Case
My research uses Maine's six-year food sovereignty conflict as a window into that question. Participating communities understood food sovereignty as the right to buy and sell food directly from local farmers without state licensing and inspection requirements (Halloran 2011).
In 2011, the first Maine town adopted a food sovereignty ordinance. Sixteen more municipalities and one additional town by resolution would follow over the next six years. The state pushed back, sending letters warning that the ordinances were preempted by state law and eventually suing a local farmer, Dan Brown, for selling raw milk without a license. The state won in court twice, including at the Maine Supreme Court. And yet local communities kept going. More towns adopted ordinances, sympathetic legislators kept introducing food sovereignty bills in Augusta, and farmers publicly declared they would continue selling regardless of what the courts decided.
By 2017, the state passed a food sovereignty law reflecting the core demands of those communities.
What Actually Moves a State
The outcome — the state adopting local governments' position despite winning in court—is the puzzle. What the analysis reveals is that what ultimately moved Maine was not a legal argument or a single act of defiance, but the steady accumulation of enforcement costs. Monitoring food transactions at farm stands and farmers markets across 17 municipalities would have required labor-intensive, ongoing inspections. Repeated legislative engagement kept the issue alive on a formal agenda already operating under strict session time limits. With local residents openly declaring they would continue engaging in direct producer-to-consumer transactions regardless of the outcome, the costs of the state's continued enforcement kept mounting. Eventually, sustaining preemption cost more than the state was willing to pay.
This is the enforcement cost mechanism: local governments may be able to overcome preemptive constraints when their resistance raises the costs of enforcement high enough that states find accommodation more attractive than forcing compliance. Crucially, the resistance does not need to be centrally coordinated to work. Across Maine, farmers, community members, civic organizations like Food for Maine's Future, and sympathetic legislators pursued the cause through different channels and without centralized coordination. The cumulative pressure they generated was nevertheless real.
The Democratic Stakes
Maine's food sovereignty conflict is a specific case, but the dynamic it reveals is not. Across the country, cities and towns are fighting their states over minimum wage laws, rent control, environmental regulation, immigration enforcement, and reproductive rights. In most of these conflicts, the state holds the legal upper hand. But as Maine shows, legal advantage does not always translate into policy outcome.
What determines whether local resistance succeeds is not primarily a legal question. It depends on whether the costs of enforcement—administrative, political, and reputational—become high enough that the state finds accommodation more attractive than continued opposition. Local governments that sustain pressure across multiple fronts, keep the issue alive in formal channels, and make clear they will not quietly comply are doing something more than protesting. They are making enforcement expensive.
This matters for how we think about local democracy. Cities and towns are not simply administrative units waiting to be told what they can and cannot do. They are political actors who, under the right conditions, can contest and reshape the terms of governance from below. The question of who governs is not settled by law alone. It is negotiated, contested, and sometimes won from the bottom up
Kathleen Nganga is an assistant professor of political science at St. Olaf College. She received her Ph.D. in political science from Johns Hopkins University. Her research examines state-local political conflict, preemption, and shared sovereignty, engaging the foundational question of who governs and what that means in practice. She is particularly interested in how subnational governments serve as simultaneous sites of democratic contraction and expansion in American political life.