Preemption: The Continuing Challenge

The decade of the 2010s witnessed the emergence and rapid spread of aggressive state preemption of local government actions. This “new preemption” consists of intentional, extensive, and sometimes punitive state efforts to block local action across a wide range of domains—from firearms regulation to the treatment of immigrants, workplace equity to environmental protection, the scope of anti-discrimination laws to the regulation of the sharing economy. This new preemption has roots going back to the turn of this century, and began to build decades ago, but it took off most dramatically after the Republican takeover of many state governments in 2010, and began to draw substantial scholarly attention around 2017-2018. Preemption battles continue. The challenge posed by preemption to the structure of our state-local relationship continues to grow, even as preemption practices change, and our understanding of how to address the preemption problem evolves. So, too, the traditional — or classic — preemption involving judicial determinations of whether state laws actually conflict with local laws remains an important factor in sorting out state-local relations. New and classic preemption are often intertwined, as courts determine exactly what type of local action is preempted by state law. Old and new preemption are about the same subject: what principles ought to guide the allocation of powers and responsibilities between our state and local governments. This article, which began as an address at a conference on preemption in early 2020, focuses on preemption developments in the two years — 2018 through early 2020 — after the initial burst of legal scholarship on the new preemption appeared. It reviews new preemptive measures by state legislatures, state court decisions, and the appearance of local conservative resistance to state legislation that advances progressive agendas. It concludes by considering the preemption principles proposed in The Home Rule NLC 21st Century Home Rule report to see what kind of state-local relationship those principles envision