Essentials of Preemption

  • Preemption occurs when, by legislative or regulatory action, a “higher” level of government (state or federal) eliminates or reduces the authority of a “lower” level over a given issue.
  • The federal government has very broad authority to preempt.  Under the Supremacy Clause of the U.S. Constitution, Congress and federal regulators have virtually unlimited authority – if they choose to exercise it – to preempt state and local health laws. Similarly, states almost always have broad authority to preempt local laws.
  • Local control of health and public health matters has numerous benefits that are lost when local power is preempted.  Local control provides for accountability and innovation because local legislators interact with their constituents and can craft laws addressing the unique needs of their communities.
  • Local control and grassroots movement building can empower the public health field to pursue fundamental policy change. Grassroots campaigns, even if they are initially unsuccessful, are powerful public health initiatives that increase awareness of a health issue, build community readiness for policy change, and lead to healthier social norms. Allowed to grow, grassroots movements and the public dialogue they engender can spark a chain reaction of policy education and social norms change.
  • Preemption is a nearly universal issue across health and public health arenas, from alcohol policy to obesity prevention to fire prevention.  Preemption, once passed, is also very difficult to repeal.
  • The public health community should consider all of preemption’s short- and long-term consequences, including its impact on grassroots movement building, before agreeing to preemptive legislation.
  • Under rare circumstances preemption can be appropriate, as in the case of the Airline Smoking Ban.  Because commercial aircraft pass rapidly from one jurisdiction to another, stronger laws in some states than others could subject aircraft to differing regulations several times an hour.  Hence, a strong, comprehensive system of federal rules makes sense.  In public health such examples are rare.

    • Blog

    • Risk of Preemption in the Smoke-Free Housing Movement

      Over the last few years, the movement to promote smoke-free policies for multi-unit housing has been extremely successful.  Thousands of privately own apartment buildings have voluntarily implemented policies prohibiting or significantly restricting smoking in common areas, individual units, on patios and balconies and on the entire property.  Public housing authorities…

    • IOM Takes the Lead on Preemption

      The Institute of Medicine has addressed federal and state preemption in a new report on law and policy in public health. Among the most authoritative, and unbiased, voices in public health, the IOM has concluded that federal and state preemption should be avoided “unless there are compelling reasons to the…

    • Preempting a movement for childhood obesity prevention

      Taking a well-worn page from the playbook of the Tobacco Industry, the fast food industry is quietly, and so far successfully, eliminating local control over nutrition policy. In March, the Arizona legislature passed a preemption bill written by the Arizona Restaurant Association.  The new law, which goes into effect in July, takes away the authority…

    • Preemption threatens grassroots fire prevention movement

      About 3000 Americans die in home fires every year and thousands more are injured. Home fires are the greatest cause of fire deaths and injuries, and children under five and older adults face the highest risk. One of the great public health success stories of the past decade is the grassroots movement for…

    • Preemption should be the exception, not the rule

      There’s been bad news on the federal preemption front recently, but there’s some good news, too. Last month, the Administrative Conference of the United States published a Recommendation for the first time in fifteen years—about preemption in federal rulemaking. The Recommendation explains a Clinton-era Executive Order (that builds upon a…

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    News

    • Regulating Guns in New Orleans: An Op-Ed

      Louisiana is one of 42 states…that prohibits any political subdivision from passing an ordinance or regulation concerning the sale, purchase, or ownership of guns that’s more restrictive than state law.

    • Cleveland files in court to keep its ban on trans fats

      Jackson was joined…by council members Phyllis Cleveland and Joe Cimperman… Cleveland, council majority leader, noted that she had voted against the trans fat ban last year…
      “But I stand here in support of our mayor and our partners,” she said… We see our city power being attacked by Columbus… [O]ur right to govern ourselves is being eroded.”

    • Environmental Groups Call for Tougher Measures in Marcellus Shale Bills

      While the industry faces a significant challenge in meeting local land use controls, there are critical site or regional considerations that cannot be effectively addressed within a state statute. The state should not grant special preemption for any one industry in this regard.

    • Mayors’ group campaigns against concealed gun bill

      NEW YORK (AP) Monday, September 12, 2011; Seattle Post-Intelligencer Mayor Michael Bloomberg and other mayors in support of gun control are speaking out against a…

    • IOM Report: Revitalizing Law and Policy

      “[U]nless there are compelling reasons to the contrary, the federal government ought not preempt state and local authority in advancing the public’s health.”

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    Resources

    › Fact sheet

    › Glossary

    › Links

    › Preemption Checklist

    › Building Movements

    › Movement Benefits

    › IOM Presentation