The Challenge of the New Preemption
40 Pages Posted: 8 Feb 2018
Date Written: February 1, 2018
The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including inter alia firearms, workplace conditions, sanctuary cities, anti-discrimination laws, plastic bag bans, and menu labeling. Particularly striking are punitive measures that do not just preempt local ordinances but hit local officials or governments with criminal or civil fines, state aid cut-offs, or liability for damages, and broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption is closely linked to the partisan and ideological polarization between red states (or purple states with red governments) and their blue cities. This article outlines the spread of the new preemption and explores the limited legal arguments available to local governments under existing law for challenging preemption. It then draws on the normative values of local decision-making, the cornerstone role local governments play in our governmental structure, and the widespread state constitutional adoption of home rule to protect local autonomy to develop legal arguments for the invalidation of the more extreme preemptive measures. It also considers whether, in light of the conservative embrace of state governments over local ones and the progressive turn to localism, arguments about federalism or localism are really just means to other policy ends. It concludes that, particularly in the current era of polarization, our system ought to protect some local space for self-determination for problems that arise at the local level.
Keywords: preemption, local government, government, constitutional law
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