AuthorDi Gioia, Ilaria

Introduction 617 I. The Rise of Intrastate Pre-Emption 619 II. The Delegation of Marijuana Police Powers to Municipalities 623 III. Recreational Marijuana 'Opt-Out' Provisions in California 626 IV. Recreational Marijuana 'Opt-Out' Provisions in New Jersey 629 V. Recreational Marijuana 'Opt-Out' Provisions in New York 636 Conclusion 639 Introduction

Legalization of recreational marijuana has gained momentum in the United States. As of December 2021, 18 states, Washington D.C., and Guam have legalized recreational marijuana. (1) The relatively broad support at the state level, however, has not always been reflected at the local level. For example, in California--which has been at the forefront of efforts to liberalize marijuana laws since 1996 (2)--two-thirds of municipalities banned marijuana cultivation and retail sales, (3) and in 2019, 24 local governments sued the state to block local home delivery of marijuana. (4) In Michigan, about 80 communities have opted out of the legalization law adopted by voters in November 2018. (5) In New Jersey, about one in four municipalities have introduced or adopted ordinances barring marijuana-related businesses. (6)

From a first glance, these local ordinances resemble similar push-back attempts of local authorities to regulate fracking, (7) firearms, (8) minimum wage, (9) genetically modified organisms (GMOs), (10) plastic bags, (11) and more recently--COVID-related mandates. (12) States have generally sought to strike down local regulations in these areas by issuing pre-emptive legislation. (13) But marijuana is exceptional. Remarkably, some states have left localities free to opt-out of the legalization and impose local bans on dispensaries. In New Jersey and New York, for example, states have set a deadline for municipalities to opt-out of the legalization of marijuana commerce. (14)

By using marijuana as a case study to understand the compromise between state and local government competing interests, this Essay explores the often-overlooked area of police powers granted to local municipalities. Part I of this Essay will provide the context within which state pre-emption exists, considering areas where states have traditionally pre-empted local ordinances. Part II will consider the decriminalization of marijuana as a case study in understanding and exploring the alternatives to fully-fledged state pre-emption. It will also explore the different ways in which states have negotiated with and delegated to municipalities the authority to ban marijuana business, with particular reference to California, New Jersey, and New York. Finally, this Essay will conclude that the optout approach taken by the states in the legalization of marijuana could represent a possible solution for other intrastate conflicts and that state legislatures could benefit from the marijuana experience. State legislatures can use the marijuana experience to create alternatives to court pre-emption of local policies and identify new collaborative strategies with local governments.


    Intrastate pre-emption is on the rise. States have traditionally preempted local ordinances that do not comply with state law, but recently state legislatures have made broader use of pre-emption. In 2018, the National League of Cities reported a rise in the number of pre-emption statutes in the areas of minimum wage, paid leave, anti-discrimination, ride-sharing, home-sharing, municipal broadband, tax, and expenditure limitations. (15) Legal scholars have argued that this increase in the use of pre-emption statutes constitutes an "attack on American cities," (16) as it is representative of an anti-urban disadvantage in national and state law-making (17) and that "the breadth and ambition of the recent preemption efforts have rarely been seen in American history." (18)

    In addition to the increase of pre-emption statutes, scholars have observed a change in the nature of the statutes, which are more aggressive. For example, Professor Erin Adele Scharff of Arizona State University has published extensive research on the rise of so-called hyper pre-emption statutes, statutes that not only assert state authority over a specific policy area but also include broad punitive measures, which apply a fiscally-disabling sanction whenever a locality is deemed in violation with state law. (19) Furthermore, the phenomenon of punitive pre-emptive statutes has been termed by Professor Richard Briffault, the "new preemption" (20) and by Bradley Pough, Deputy Associate Counsel in the White House Office of Presidential Personnel, a "super preemption" with particular reference to those statutes aimed at holding local actors personally accountable for ordinances that impermissibly expand local power. (21) Studies have also been conducted to identify the origin of pre-emption bills. Professor Jessica Bulman-Pozen, in particular, has contributed to the study of preemption as a nation-wide phenomenon and has investigated the role of interest groups such as the American Legislative Exchange Council or the National Rifle Association in encouraging the enactment of pre-emption bills by drafting model pre-emption legislation and "shopfping] it to state lawmakers across the country." (22) Her study confirms that pre-emption is a national phenomenon and that it is the product of broader national dynamics related to the polarization of U.S. politics rather than an individual state issue.

    The connection between pre-emption and polarization has also been investigated by political scientists who suggested that the primary cause of the rise of pre-emption is to be found in the polarization of U.S. politics and that pre-emptive statutes are attempts to control political defection of local authorities by legal means. (23) Political scientists have speculated on the political meaning of pre-emption. For example, Professor Vladimir Kogan argued that engaging in political quibbles is actually beneficial for mayors because "[p]icking fights with state government over high-profile issues is a great way for big-city mayors to attract national notoriety." (24) He, therefore, identified the political value of pre-emption statutes in the context of an increasingly polarized state politics. (25)

    The connection between pre-emption and political polarization had been further evidenced by Professor Kenneth A. Stahl in his study of North Carolina's HB2 (a Bathroom Bill) that pre-empted the city of Charlotte's effort to provide civil rights protections for transgender individuals. (26) In 2017, during the first year of the Trump Administration, Professor Stahl argued that "preemption has become more prevalent because cities are now overwhelmingly Democratic while state legislatures, dominated by representatives of rural areas, are overwhelmingly Republican." (27) One may wonder if things had changed since the 2020 elections and the change of administration.

    As of June 2021, with the Democratic Biden Administration, preemption was still thriving. Forty-two states have pre-empted the local regulation of firearms, (28) and 23 states have pre-empted local smoking restrictions in government worksites, private worksites, restaurants, or bars. (29) The COVID-19 pandemic has also exposed major intrastate conflicts. Where governors had initially refused to issue lock-down orders and mask mandates, some cities and counties issued separate local restrictions such as "masking" and "stay-at-home" orders. (30) Governors responded to these conflicting local measures by issuing executive orders that pre-empted localities from implementing those restrictions that went beyond state policies. (31)

    For instance, on March 25, 2021, Arizona Governor Doug Ducey signed an executive order that prohibited local authorities from enacting mask mandates or making any order in conflict with state policy, (32) and in May 2021, Florida Governor Ron DeSantis issued an executive order that suspended and prohibited all local COVID-19 restrictions in the state, including mask rules. (33)

    In Georgia, Governor Brian P. Kemp attempted to pre-empt local restrictions and even sued the city of Atlanta for issuing local mask mandates and going beyond state guidelines. Particularly remarkable was the executive order issued by Atlanta Mayor Keisha Lance Bottoms on July 8, 2020, that required restaurants to only have takeout and curbside pickup, people to wear masks, shelter-in-place at home, and only leave for essential tasks. (34) The order went beyond state restrictions which allowed restaurants to reopen with restrictions and did not require masks. Governor Kemp's immediate reaction was to issue an executive order that forbid local authorities from issuing mask mandates. (35) In an attempt to further settle the dispute with local authorities, Governor Kemp sued Atlanta Mayor Keisha Lance Bottoms for having "exceeded her authority by issuing executive orders which were more restrictive than his Executive Orders related to the Public Health Emergency." (36) The Superior Court of Fulton County sent the case for mediation, (37) but the parties could not compromise. (38) Governor Kemp eventually dropped the lawsuit and decided instead to issue a new executive order that allowed local authorities to issue "Local Option Face Covering Requirement" only in public and on government property but restricted them from issuing mask mandates on private property. (39) The Georgia case demonstrates that even though preemption is still the first choice in case of intrastate conflict, there are effective alternatives to pre-emption and that they reside in the realm of political negotiation and compromise.

  2. The Delegation of Marijuana Police Powers to Municipalities

    State pre-emption of local laws is often considered as the only solution to intrastate conflict. However, the recent wide-spread delegation of marijuana regulatory powers to municipalities shows that there is a workable...

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