Is Enhanced Judicial Review the Correct Antidote to Excessive State Preemption?

Abstract

In proposing a new system of constitutional home rule, the National League of Cities’ Principles of Home Rule for the 21st Century would empower the judiciary to police preemption in a manner akin to older systems of home rule adopted in the late nineteenth century. Because legislatures have abused their power to police local governments under the more modern legislative home rule, the Principles reason, states should again designate the judiciary as a backup supervisor of the state-local divide.

This Article examines the judiciary’s potential strengths and weaknesses as a home rule policeman from an institutional perspective. It surveys the real-world examples of California and Colorado, two states whose judiciaries have played a prominent role in supervising preemption for decades. The Article also assesses how interest-based tier scrutiny, which the Principles propose as the methodology judges use to review preemption, might mesh with state constitutional jurisprudence. In doing so, the Article considers alternative methods of judicial review—proportionality and reasonableness—that are popular in other constitutional regimes. The Article concludes that reformers should proceed carefully and analyze the state-specific benefits and drawbacks of placing supervisory authority for home rule in state courts.