By: Sarah Johnson
Many of our customers have been paying special attention to state preemption laws, so I felt it was the perfect time to take a closer look at what preemption bills are, what impact they could have on our society, and what legislation we are currently seeing relating to these kinds of laws across the nation.
What are Preemption Laws?
The Legal Information Institute says, “The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict.” Because of the Supremacy Clause of the Constitution (U.S. Const. art. VI., § 2), when local law, state law, or federal law conflicts, the higher level law displaces, or preempts, the lower level law. This means state laws preempt local laws and federal laws preempt state laws. It does not matter where the conflicting laws come from (legislatures, courts, administrative agencies, constitutions), preemption applies irregardless.
According to the Legal Information Institute, there are usually three types of conflicts relating to preemption on the local level:
- Outright conflict – when an ordinance directly opposes a state law
- Express preemption – the state law directly opposes a local power
- Implied preemption – occurring when 1 of 3 things happen:
- A local ordinance prohibits an act permitted by the state legislature
- A local ordinance permits an act prohibited by the state legislature
- There is clear legislative intent that the “field” is preempted by state law
The “field” is usually defined as when there is an extensive scope of state regulation which reflects a state intent to preempt all local regulations that are in a particular area. Occupation of the field is likely to be found when state law addresses an area that has not traditionally been a matter of the state.
What are some National Examples of these Laws in Action?
Voting Rights
An example I believe most of us are familiar with is the Voting Rights Act. When Congress passed this act, it preempted (and continues to preempt) state constitutions in conflict with what the Act established. This means that when the VRA was passed, every right afforded to US Citizens, especially in regards to the important protections for minorities from discriminatory voting practices, put forth in the Act applied throughout the United States, from sea to shining sea, for every person, immediately. Any state laws that were in conflict with the VRA were no longer enforceable state law and all states had/have to adhere to requirements the VRA made into law.
Marijuana
Another example that probably comes right to mind is the legalization of recreational marijuana. Marijuana remains illegal at the Federal level, yet several states have legalized it. So is it legal? No, not really. Federal law preempts state law. So why are so many people growing, marketing, selling, buying, and consuming marijuana as if it is legal? Well, that’s complicated. But federal agents could take action against anyone involved in the marijuana trade if they wanted to. For more information on what Jeff Sessions was working on while Attorney General relating to state level marijuana legalization, read Sessions versus Marijuana: What Are His Options? and Marijuana Legislation Update: Sessions Waging his own War on Drugs. For more information on this topic in general read Marijuana, coming to an election near you and Marijuana for All?
Same-Sex Marriage
In 2015 decision Obergefell v. Hodges the Supreme Court required all states to issue marriage licenses to same-sex couples. This decision was met with resistance in some states, most famously Kentucky County Clerk Kim Davis, who refused and was sued, which did not wind up going great for her. Because preemption. Gay marriage and general treatment of LGBTQIA people are at the heart of many different preemption issues around the United States including: Conscience and Religious Freedom, Bathroom Bills, and the Right of Freedom of Religion vs Freedom from Discrimination. For more on this, see what the Equality Federation is up to in local preemption the section below.
What are some State Examples of these Laws in Action?
We have seen a few major themes in preemption laws on the state level, primarily pertaining to sanctuary cities and firearm regulation.
Sanctuary Cities
We can all think back over the last few years when sanctuary city status and policies were front and center in the news. Last year, the US 9th Circuit Court of Appeals upheld the California Values Act (enacted in 2017) which prevents state and local law enforcement agencies from using their resources on behalf of federal immigration enforcement agencies. The Judge, Judge John Mendez of the United States District Court for the Eastern District of California, said in his opinion that “The Court does not find any indication in the cited federal statutes that Congress intended for States to have no oversight over detention facilities operating within their borders.”
Judge Mendez’s decision overrode the federal government’s assertion that the bill violates the Supremacy Clause, and that Trump’s executive order pulling almost all federal grants from cities and states that violate 8 USC Section 1373 (Communication between government agencies and the Immigration and Naturalization Service) should take precedent. Section 1373 bars cities or states from forbidding their employees to divulge information to federal immigration enforcers about the citizenship status of people within their jurisdiction.
Firearm Legislation
Currently, we are also seeing a lot surrounding state laws being passed relating to firearm policies enacted on the federal level. This legislation aims to stop federal preemption to enforce or not enforce gun control on states that do not want to enact gun control or want to enact stronger gun control than what is law at the federal level.
West Virginia’s SB96 prohibits municipalities from limiting persons’ rights to possess certain weapons: revolvers, pistols, rifles, shotguns, deadly weapons, pepper spray, or any ammunition or ammunition components for said weapons.
Pennsylvania’s SB531 seeks to change Pennsylvania’s current preemption laws by allowing state gun owners or organizations with members who are state gun owners to sue local municipalities that violate the preemption law.
Washington’s HB1374 would abolish Washington’s state preemption statute, allowing “local jurisdictions the ability to build upon statewide standards and adopt responsible approaches to firearms regulations to help address the epidemic of firearm violence in their communities by restoring inherent local authority to adopt firearms regulations under the police power to protect public health, safety, and welfare.”
There are many bills proposed in states that bar the state from enforcing any federal law that is perceived to limit inhabitants of that state’s rights afforded to them by the Second Amendment. See the map below for legislation aiming to make federal gun regulations laws unenforceable.
The Giffords Law Center To Prevent Gun Violence has listed and explained preemption laws relating to firearms in each state here.
Another aspect to federal, state, and local preemption and how the differing laws can cause confusion is relating to constitutional carry. According to the NAGR, “Constitutional Carry laws recognize the right of every law-abiding citizen to carry a firearm, openly or concealed, on their person, without having to receive government permission in the form of a mandatory state-issued permit.” Last year, we saw some of our most popular gun legislation addressing constitutional carry, which regulation of varies state to state and is often confusing for gun carriers.
What are some Local Examples of these Laws in Action?
When examining what state preemption laws (states preempting local governments) currently look like, most of the ordinances challenging preemption are related to: fracking, firearm policies, anti-discrimination policies, marijuana decriminalization, minimum wage, and paid leave.
Fracking
Several states have passed legislation in the last few years prohibiting localities from banning fracking. In 2011, North Dakota passed HB1216 a straightforward declaration that:
Notwithstanding any other provision of law, the legislative assembly designates hydraulic fracturing, a mechanical method of increasing the permeability of rock to increase the amount of oil and gas produced from the rock, an acceptable recovery process in this state
This bill effectively preempts any city or county from banning fracking. And in 2012, Utah’s SCR012 looked the other way, “Urging Congress to Clearly Delegate Responsibility for Regulating Hydraulic Fracturing to the States”. With localities fighting for their right to frack or their right to have their community free from the potential harms of fracking, this issue is particularly testy. States also attempt to curb local movements against things like fracking through anti-protestor legislation, find out more about that here: “Critical Infrastructure” and Anti-Protester Legislation.
Firearms
As we saw on the state level, we also see state government passing preemption laws relating to localities ability to pass/enforce gun regulations. According to Every Town USA, more than 40 states have passed firearm preemption laws that prohibit local governments from adopting gun laws and ordinances the create gun regulations which may be shaped to fit the local communities and their priorities.
After a man killed nine people and injured 27 more in Dayton, roughly 80 Ohio cities enacted assault weapon bans and other gun control ordinances. The Ohio state government then passed HB 347 in 2007, which forbade cities from passing tougher gun regulations than what already exists as state law. In Richmond, Virginia, officials attempted to ban bats, shields, knives, and poles from a white supremacist protest organized shortly after the deadly violence in Charlottesville. But, because of Virginia’s preemption laws, local officials could not pass the ordinance to prohibit guns at the rally. In Okaloosa County, Florida officials passed an ordinance which amongst other things banned trampolines, bounce houses, and firearms in beaches, parks, and recreation areas. But, Florida also has a firearm preemption law, which forced local officials to lift the firearm ban in those public places, but allowed the ban on bounce houses and trampolines to go into effect even though the ban is not in congruence with state law relating to those items.
Anti-Discrimination Policies
The Equality Federation has a great map depicting many different approaches states without statewide nondiscrimination laws are taking to preempt the laws of cities and towns who pass anti-discrimination ordinances. They track Anti-transgender (attempting to retract access to affirming healthcare, sports, and facilities that match people’s gender) and Pro-transgender (affirming initiatives like nonbinary gender markers on identity documents, nondiscrimination in healthcare, and gender neutral bathrooms) legislation. Bills relating to LGBTQ inclusive education curriculum and making school a safe place for all students to combat bullying, harassment, and discrimination. Legislation banning Conversion Therapy, which attempts to change a person’s sexual orientation or gender identity through a variety of methods, including induced vomiting and electric shock, has also seen an increase in popularity recently as all leading medical and mental health professional associations label it an ineffective, dangerous practice. Bills seeking to criminalize HIV disincentivizes individuals to find out their HIV status, disproportionately targets LGBTQ people, and does not work on treating the issue (monitoring needle exchange, forced testing, prevention via comprehensive sex education, etc.). Finally, they track bills titled “Religious License to Discriminate” which is legislation like that covered aforementioned blog Conscience and Religious Freedom. This type of legislation allows people, businesses, schools, and corporations the right to discriminate against LGBTQIA people based on their religious beliefs.
Other Areas
In 2017, on the final day of the legislative session, the St. Louis government passed a bill to override a St. Louis ordinance which mandated a minimum wage of $10 an hour in the city. The bill lowered the floor to $7.70 an hour in St Louis and prohibited political subdivisions from requiring a minimum wage that exceeds the requirements of state law. Nashville and Memphis passed local ordinances that gave police the power to reduce penalties for possession of small amounts of marijuana. But, just seven months later, the Tennessee legislature repealed the separate Nashville and Memphis laws allowing for partial marijuana decriminalization in those communities and “clarifying that state law preempts local government enactments with respect to the regulation of and appropriate sanctions for conduct involving drugs and other similar substances”.
The Economic Policy Institute has an amazing graphic that shows the forty-four states who have preemption laws that target key worker rights. The graphic illustrates laws falling under the following categories: minimum wage, fair scheduling, project labor agreements, prevailing wage, paid leave, and the gig economy. The Equality Federation also has a map widget tracking bills that preempt certain labor protections (increased minimum wage, etc.).
What are Possible Issues with Preemption Laws?
The number one issue brought up relating to state preemption legislation, is it is designed to stop municipalities from creating a patchwork of different laws throughout the state. If municipalities could enact different laws from place to place, citizens may not know if they are committing offenses when they cross a jurisdictional line.
The National League of Cities released a very interesting report, “City Rights in an Era of State Preemption”, which focuses specifically on the areas of economic and social policy. They say,
In the economic sphere, there has been a concerted effort to impinge on the ability of cities to regulate economic activity taking place in communities. While a range of local laws have been preempted, this analysis centers on local minimum wage ordinances, the implementation of municipal broadband and the regulation of sharing economy activity in the ride-hailing and home-sharing space. When it comes to social policy, aggressive state action has limited the ability of city leaders to expand rights and provide opportunities to community members. Recently, we have observed states curtailing the ability of cities to pass laws supporting inclusive, family-friendly communities—particularly as it pertains to the areas of LGBTQ rights and paid leave laws.
In some cases, state preemption does not mean progress is lost and can even lead to improved policy statewide. However, preemption that prevents cities from expanding rights, building stronger economies and promoting innovation can be counterproductive and even dangerous.
When speaking about how state preemption can impact our society, the Giffords Law Center To Prevent Gun Violence says that broad state preemption statutes threaten public safety because they:
- Ignore important local variations that make varying approaches to preventing gun violence appropriate in different areas, like the differences between urban and rural communities.
- Hinder enforcement of gun laws, because the Bureau of Alcohol, Tobacco, Firearms & Explosives and state law enforcement agencies generally lack the resources or authority to properly oversee all the firearms businesses in their jurisdictions.
- Thwart local innovation in gun violence prevention strategies which can lay the groundwork for state-level change. For example, California allows local regulation of guns, and several of the state’s important firearm policies, like requiring a locking device be included with every firearm purchase, began as local regulations before being adopted state-wide.
Preemption is a difficult topic. On one hand, yes I do believe that if every municipality could create vastly different rules and regulations, it would be a nightmare to navigate around a state. But, it also does not seem just that cities are not allowed to enact ordinances that reflect the desire of their citizens, even if a state or federal legislature is against it.
What are your thoughts?
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