Hyper Preemption: A Reordering of the State–Local Relationship?

Abstract

The role of cities in our federalist system is once again in the news. President Donald Trump’s executive order purporting to cut federal funding for “sanctuary cities” made headlines across the country. However, this federal–municipal showdown is part of a much larger story about the changing regulatory role of cities. Even as cities cast themselves as defiant against conservative federal policies, many are finding themselves in a much weaker position with respect to state policymaking.

Already, state legislators across the country are introducing bills that would cut state funding to local governments implementing “sanctuary city” policies. Such efforts are among the many preemption bills pending in statehouses across the country. Local governments, as creatures of state law, are required to conform to state law, and legislatures have used this power to block municipal regulatory policies.

Scholars have noted this uptick in preemption efforts and discussed the effect of particular preemption policies. This Article addresses an important and emerging trend in intrastate preemption. This new brand of preemption statutes seeks not just to curtail specific local policies but, rather, to chill local policymaking. These punitive statutes punish local governments or their public officials for taking policy positions and deny them access to the typical legal processes for determining the legality of local ordinances.

In this Article, I identify this phenomenon as “hyper preemption” and describe its various incarnations. I argue that these hyper preemption statutes are different than traditional preemption statutes, which focus on asserting state control over specific policy areas and often involve specifically local regulatory efforts. I then discuss legal and institutional limits on this hyper preemption model.

Keywords: State Government, Local Government, Regulatory Studies