Public Health Law Watch
An initiative of the George Consortium

Public Health Law Watch blog


Public Health and the Battle for Local Control

By Micah Berman

Last year -- over at Notice & Comment -- I blogged about two laws in Arizona that were taking seemed to be extreme forms of state-level preemption.  SB 1847 provided that if the state Attorney General concluded that a local government had passed a local law that was preempted by state law, the state could withhold all state funding from the locality.  Meanwhile, SB 1524 provided -- in incredibly broad and vague terms -- that a local government "may not take any action that materially increases the regulatory burdens on a business unless there is a threat to the health, safety and welfare of the public that has not been addressed by legislation or industry regulation within the proposed regulated field."

In a recent article in the Journal of Law, Medicine & Ethics, James Hodge and colleagues helpfully noted that these two laws are part of a broader trend they have labeled "Preemption Plus."  Hodge et al, explain:  

These schemes, including direct threats, fines, loss of funds, and deauthorizations, are gaining traction especially in public health arenas impacting big industries (e.g., tobacco, sugar sweetened beverages (SSBs)) or specific interests (e.g., rights to bear arms, religious freedoms). Collectively, they can essentially force states or localities to comply with higher level policies that are antithetical to the public’s health.

"Preemption plus" efforts noted by Hodge et al include a Florida law providing that local officials can be held personally liable for enforcing preempted gun control laws, and a proposed law in Virginia that would make "sanctuary cities" liable for crimes committed by undocumented immigrants.  Not included in their account was a law I recently heard about in Colorado, that withholds state cigarette tax funds from local governments that pass their own tobacco control regulations.

A July New York Times article notes many of these same efforts and dives deeper into the politics of preemption.  It notes:

In the last few years, Republican-controlled state legislatures have intensified the use of what are known as pre-emption laws, to block towns and cities from adopting measures favored by the left. The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.

It notes that the industry-based American Legislative Exchange Council (ALEC) has been promoting model state laws pushing some of these "preemption plus" tactics.

Interestingly, the NY Times article mentions the late 19th-Century practice of "ripper bills" that took authority away from local governments and passed it to the states.  According to Richard Briffaultthese laws were often passed by rural-dominated states legislatures that wanted to take power away from the cities.  These "ripper bills" were also frequently the product of corruption, designed to benefit special interests.

Outrage at "ripper bills" led to the rise of the modern "home rule" movement, prompting state constitutional reforms and other efforts aimed at protecting local control.  Will the rise of "preemption plus" tactics lead to a similar backlash?   A new organization, the Campaign to Defend Local Control, has formed to bring attention to this issue and to push back against preemptive laws.  Those interested in promoting public health should wish them well and get involved.

Micah Bermanpreemption