Public Health 'Preemption Plus'

5 Pages Posted: 10 Jun 2017 Last revised: 21 Dec 2018

See all articles by James G. Hodge

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Alicia Corbett

Arizona State University (ASU) - Public Health Law & Policy Program

Kim Weidenaar

Network for Public Health Law

Sarah Wetter

Center for Health and Homeland Security, University of Maryland

Date Written: May 10, 2017

Abstract

Few legal concepts engender more confusion and concern in public health circles than the doctrine of preemption. Simply stated, preemption refers to “how a state or local law may be averted, displaced, or negated by conflicting laws at a higher level of government.” Federal laws may preempt state or local laws because federal law is supreme. State laws can preempt local laws because local governments are controlled by sovereign states. Even some local governments may preempt laws among lesser municipalities.

Understanding the concept of preemption is easy. Applying its principles to public health objectives, however, is complex. Preemption can facilitate or hinder public health goals. Federal preemption, for example, may be used to create a national floor for public health policies (e.g., menu labeling provisions). Conversely, preemption can thwart state or local public health legal and policy objectives. In the past several years, state legislatures have preempted local innovations in diverse public health areas including gun control, tobacco use, food policies, employment protections, and the environment.

Emerging tactics fueled by industry and organized through advocacy groups evince a deeper realm of preemption policy. Through what we call “preemption plus” strategies, law- and policy-makers seek to control lower levels of government through actions that exceed traditional boundaries or specific targets of preemption and carry increasingly negative impacts. These schemes, including direct threats, fines, loss of funds, and de-authorizations, 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 freedom). Collectively, they can essentially force states or localities to comply with higher level policies that are antithetical to the public’s health.

This manuscript explores these tactics at federal and state levels along with political and judicial arguments to address deleterious impacts on public health policy.

Keywords: preemption, public health, law, policy, constitutional

Suggested Citation

Hodge, James G. and Corbett, Alicia and Weidenaar, Kim and Wetter, Sarah, Public Health 'Preemption Plus' (May 10, 2017). Journal of Law, Medicine and Ethics, Vol. 45, No. 1, 2017. Available at SSRN: https://ssrn.com/abstract=2982027

James G. Hodge (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Sandra Day O'Connor College of Law
111 E. Taylor Street
Phoenix, AZ 85004-4467
United States
480-727-8576 (Phone)

HOME PAGE: http://https://law.asu.edu/degree-programs/public-health-law-policy

Alicia Corbett

Arizona State University (ASU) - Public Health Law & Policy Program

1100 S McAllister Ave
Tempa, AZ 85281
United States

Kim Weidenaar

Network for Public Health Law ( email )

Saint Paul, MN
United States

Sarah Wetter

Center for Health and Homeland Security, University of Maryland ( email )

Baltimore, MD 21230
United States

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