preemptionwatch.org

Ceiling preemption

Prohibits lower levels of government from adopting stronger health protections than what the higher level law requires.  It is this type of preemption that is most commonly meant when preemption is discussed, and is the form of preemption that causes concern for supporters of public health.  Ceiling preemption can prohibit a lower level government from passing any kind of law regulating a particular topic, even in the absence of meaningful state or federal regulation.

Express preemption

Express preemption occurs when a statute or regulation contains explicit language preempting stronger laws adopted by a lower jurisdiction.  Express preemption usually takes the form of a “preemption clause.”  Preemptive language comes in many forms – in addition to preempt, look for words or phrases like uniform, supersede, sole authority, occupy the field, do not exceed, shall be consistent with, and exclusive authority.

Floor preemption

A type of preemption that is generally not controversial, “floor preemption” is arguably not preemption at all.  Floor preemption refers to the fact that when higher levels of government pass laws that establish minimum requirements or standards, lower jurisdictions cannot “opt out” (unless they are specifically given that power by the higher level of government).

Grassroots health movement

A collective effort to prevent disease or other threats to health and safety, comprised of activated citizens and organizations that support them.

Implied preemption

Implied preemption occurs when a court finds that a law is preemptive even in the absence of express preemption.  Courts find implied preemption by considering the context of a given law.   Implied preemption can be avoided by including a well drafted non-preemption, or “savings,” clause in public health legislation or regulations.

Law

A local, state or national system of formal rules governing the conduct of individuals and businesses, in response to the need for regularity, consistency and justice.  The term “law” includes statutes adopted by a legislative body, regulations adopted by a government agency, and court decisions.

Preemption

The extent to which federal law trumps state and local authority (or state law trumps local authority).  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.

Preemption clause

Explicit language in a statute, regulation or other law that expresses the intention to eliminate or limit the authority of lower levels of government over a given subject matter.

Public health

Community action to avoid disease and other threats to the health and welfare of individuals and the community at large.

Regulation

An agency statement of general applicability that implements or interprets a statute or other law, adds detail, or creates a procedure.  Regulations are normally adopted through a formal rulemaking process that allows for oversight and public input.

Rulemaking

The process by which formal rules or regulations are considered and adopted.  A government agency may adopt regulations only to the extent that the legislature has given it the authority to do so, and rulemaking authority is limited by the scope of the delegation.

Statute

A written law adopted by the act of a legislative body.  Statutes are enacted to proscribe conduct, define crimes, create lower units of government, delegate rulemaking authority, delegate or take away authority from lower units of government, and in general promote the public good.

Savings clause

Also known as a non-preemption clause, a savings clause states that a federal statute or regulation does not preempt stronger state and local laws (or in the case of a state law, does not preempt stronger local laws.)   For example, a federal law might state: “Nothing in this law preempts more restrictive state or local regulation or requirements.”  Inclusion of a well drafted savings clause is the only way to ensure that a federal or state law will not preempt stronger state or local laws.

Supremacy Clause

Article VI, Clause 2 of the US Constitution provides that federal laws “shall be the supreme Law of the Land.”  Among other things, this means that Congress and federal regulators have virtually unlimited authority – if they choose to exercise it – to preempt state and local health laws.