Academic journal article Stanford Law Review

The Challenge of the New Preemption

Academic journal article Stanford Law Review

The Challenge of the New Preemption

Article excerpt

Introduction  I.     The New Preemption         A.    Punitive Preemption               1.   Personal liability              2.   Fiscal sanctions         B.    Nuclear Preemption  II.    Legal Arguments Against Preemption         A.   Federal         B.   State              1.   Home rule             2.   Challenging punitive preemption  III.   Protecting the Capacity for Local Self-Government  Conclusion: Local Autonomy--Means or End? 


This decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action. Traditionally, preemption consisted of a judicial determination of whether a new local law conflicted with preexisting state law. Classic preemption analysis harmonized the efforts of different levels of government in areas in which both enjoy regulatory authority and determined the degree to which state policies could coexist with local additions or variations. (1) Classic preemption disputes continue to arise, but the real action today is the new preemption: sweeping state laws that clearly, intentionally, extensively, and at times punitively bar local efforts to address a host of local problems.

The new preemption runs the gamut from firearms regulation to sanctuary cities, from workplace equity to environmental protection and public health. New preemption measures frequently displace local action without replacing it with substantive state requirements. Often propelled by trade association and business lobbying, (2) many preemptive laws are aimed not at coordinating state and local regulation but at preventing any regulation at all.

Several states have adopted punitive preemption laws that do not merely nullify inconsistent local rules--the traditional effect of preemption--but rather impose harsh penalties on local officials or governments simply for having such measures on their books. Others have considered proposals that are tantamount to nuclear preemption, effectively blowing up the ability of local governments to regulate without affirmative state authorization.

The rise of the new preemption is closely connected to the interacting polarizations of Republican and Democrat, conservative and liberal, and nonurban and urban. To be sure, Democratic states preempt Democratic cities; (3) preemptive laws constrain small towns; (4) and some measures impose progressive values on conservative communities. (5) But the preponderance of new preemption actions and proposals have been advanced by Republican dominated state governments, embrace conservative economic and social causes, and respond to--and are designed to block--relatively progressive local regulations. Since 2011, Republicans have dominated state government. (6) As of 2016 Republicans controlled both houses of thirty-two state legislatures and had trifectas--control of the legislature and the governorship--in twenty-five states. (7) Even as a majority of states are controlled by Republicans, most cities, particularly big cities, are led by Democrats. Thirty-three of the fifty largest cities have Democratic mayors; fourteen of those are in Republican trifecta states. (8) The not-so-irresistible force of cities pushing progressive agendas increasingly runs into the immovable object of conservative state resistance, manifested by aggressive preemption. (9)

Part I of this Essay provides an overview of recent preemptive laws, with a focus on the most punitive and sweeping measures. Part II examines the limited ability of current federal and state legal doctrines to protect local governments from their states. Part III calls for closer state court scrutiny of preemptive measures, scrutiny grounded in (i) the values of local self-government, (ii) the crucial role local governments play in our governance structure, and (iii) the widespread state constitutional provision for home rule. Extreme new preemption measures that strike directly at the capacity for local self-government are inconsistent with the central place of local governments in our democracy. …

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