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101 N.C. L. Rev. F. 1 (2022-2023)

handle is hein.journals/addendum101 and id is 1 raw text is: 101 N.C. L. REv. F. 1(2022) DEMOCRATIZING EMERGENCIES: THE LOCAL PREDICAMENT* KELLY J. DEERE Disasters are typically local events-even in a pandemic. Throughout 2020 and into 2021, state governors used their emergency powers to issue stay-at-home orders, close nonessential businesses, and ban mass gatherings-including gatherings for religious services. However, during the COVID-19 pandemic it was local government that reacted more quickly in the beginning and continued to act into early 2022 when many state governments refused to consider social mitigation measures to curb transmission, despite a national surge of nearly a million cases per day. For citizens who desire their state government to do more in an emergency, local government often fills that gap. While these local cities and counties are enacting measures, like school mask mandates, in direct response to local public health metrics, many have faced resistance from their state. Some states have banned local authorities from enacting certain mitigation measures and have aggressively sought to restrain those local authorities from defying these bans through litigation and fines. While red states preempting blue- city laws is not new, some of the states' bans are more brazen in method and more obstructing in outcome. This new form of obstructing preemption places local officials in an untenable predicament. Charged with providing for the health, safety, and education of its citizens, local government cannot carry out its duties if state government removes critical public mitigation tools from its toolbox in a public health emergency. This Article highlights the urgent need for local government to fully respond in an emergency and the most important problems facing proponents of responsive regulation. This Article urges local government to continue to challenge state-placed limitations on local emergency orders. The Article further concludes: (1) that the state and federal courts can and should bolster the local governments' legitimacy in their actions on either constitutional or statutory grounds; and (2) that governments should model * © 2022 Kelly J. Deere. ** Assistant Clinical Professor of Law, Rutgers University. The author is grateful for the advice, mentorship, and expertise from Robert Williams. Recent law graduates Andrew Hoy and Kit Burnette provided valuable research assistance on this Article. The author would like to thank David Noll and the Rutgers Law School faculty attending the Abstract and Introduction Workshop for their keen observations and valuable comments for the beginning of this Article. And finally, the North Carolina Law Review editors are to be commended for their thoughtful and thorough edits throughout this process.

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