The Challenge of the New Preemption.

• Author: Briffault, Richard
• Position: Themed Issue on Federalism

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? Introduction

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.

Much of the criticism of the new preemption has focused on how conservative state lawmakers are blocking progressive local initiatives. (10) But the concerns raised by the current state challenges to local self-government transcend the politics of the particular issues at stake. In this highly polarized era, local autonomy can reduce conflict by permitting diverse communities to take different approaches to different problems while also generating usable information about how debated public policies work in practice. State power is necessary to address the external effects of local action and the costs of varying local laws as well as to ensure that the scale of government action is consistent with the scope of economic and social problems. But our system ought to maintain some legal space for local self-determination concerning problems that arise at the local level.

1. The New Preemption

   The new preemption is broad in scope and wide-ranging in subject matter. As of 2013, for example, forty-five states preempted local firearms regulation. (11) Many measures predate the past decade, but states have continued to add new prohibitions. (12)

   Triggered by the leadership role many local governments have taken in strengthening workers' rights, (13) the business community has turned to state legislatures to push back hard against local measures raising minimum wages, providing for paid sick or family leave, or protecting employees from abrupt scheduling changes. (14) Twenty-five states now ban local minimum wage requirements above the federal or state floor, and twenty preempt local paid sick leave rules. (15) Between 2015 and 2017, nine states preempted local predictive scheduling laws, (16) and local ban-the-box laws regulating employer inquiries into the criminal records of prospective employees are at risk as well. (17) Some of these statutes are particularly sweeping. Michigan's so-called Death Star law (18)--more formally, the Local Government Labor Regulatory Limitation Act (19)--bars local governments from adopting, enforcing or administering local laws or policies concerning employee background checks, minimum wage, fringe benefits, paid or unpaid leave, work stoppages, fair scheduling, apprenticeships, or remedies for workplace disputes. (20)

   Environmental and public health preemption measures include bans on local nutrition regulations, such as calorie counts and other menu labeling rules; restrictions on promotional incentives (such as toys) with fast-food meals; and efforts to address "food deserts" (poor neighborhoods with few stores selling fruits or vegetables). (21) Mississippi, for example, prohibits any local regulation of "the provision or nonprovision of food nutrition information or consumer incentive items at food service operations" or of the sale of food and beverages approved for sale by federal or state agencies. (22) This is known colloquially as the anti-Bloomberg bill in ironic recognition of the public health efforts of New York City's former mayor. (23) Other preempted public health subjects include pesticides, (24) tobacco products, (25) e-cigarettes, (26) factory farms, (27) and fire sprinkler installation in new homes. (28)

   Perhaps the most surprising flash point in the new preemption era has been plastic bags. Concerned about the aesthetic, environmental, and cleanup costs of plastic bags, at least a dozen major cities and counties have either banned or taxed their use. (29) Some states have also adopted measures to discourage use of plastic bags or promote their recycling, but more recently the state-level action has been in the opposite direction, with at least nine states barring local plastic bag regulation. (30) The American City County Exchange--the local government offshoot of the American Legislative Exchange Council, which provides templates for state preemption laws--has strongly embraced state preemption of local plastic bag regulation in the name of "business and consumer choice." (31) Arizona's attorney general's enforcement of that state's plastic bag ban ban (yes, that's two "ban's) against the tiny town of Bisbee caused a storm of controversy, with Bisbee ultimately yielding to the state's force majeure without contesting it in court. (32) Environmental preemption also includes state bans on local regulation of hydraulic fracturing, or fracking, (33) as well as state preemption of local regulation of polystyrene products (like Styrofoam). (34)

   States have also preempted local ordinances extending discrimination protections on the basis of sexual preference and gender identity. (35) The nationwide furor over North Carolina's so-called Bathroom Bill--enacted in response to a Charlotte ordinance that extended antidiscrimination protections to gay, lesbian, and transgender people and allowed transgender people to select the bathroom consistent with their gender identity--appears to have stalled these efforts for now, (36) but the issue is far from dead. (37) In a similar vein, as urban protests over public Civil War memorials to the Confederacy mushroomed, so too did state laws barring local actions to remove monuments within their borders. (38)

   Rounding out this overview, seventeen states preempt municipal broadband services; (39) thirty-seven preempt local regulation of ridesharing platforms; (40) three have displaced local regulation of homesharing and short-term rentals; (41) twenty-six bar local rent control ordinances; (42) and eleven appear to have adopted measures intended to prevent local inclusionary zoning requirements for new housing developments. (43) A few states even preempt local humanitarian measures that would bar the sale of animals raised in "puppy mills" known for keeping animals in poor conditions. (44)

   1. Punitive Preemption

      Going beyond preemption's traditional focus on simply negating local laws, some states now punish local officials or governments responsible for policies that have been preempted.

      1. Personal liability

         A half-dozen states reinforce firearms...