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Preemption

PRIORITY POLICY

Preemption

Making sure state and local governments can pass laws that support health

Preemption happens when a higher level of government discourages, limits or even eliminates the power of a lower level of government to take action on a specific issue. Federal preemption laws can restrict state and local governments. And state preemption laws—as long as they don’t conflict with federal laws—can restrict the power of city and county officials in that state.

According to leading legal scholars and experts at ChangeLab Solutions, there are two main types of preemption: floor preemption and ceiling preemption. Ceiling preemption happens when a higher level of government prohibits lower levels of government from requiring anything more than or different from what the higher-level law requires. For example, state governments have passed laws prohibiting local governments from passing higher minimum wage laws, sugary drink taxes, or food based health disparities.

Depending on how it is applied, preemption can either advance or undermine public health goals and either help or hurt efforts to improve health equity. This is because local and state governments are often at the forefront of passing innovative laws to improve the health of their residents. When they are stopped from passing laws to do so, the health of their residents suffers.

Recommendations

• State policymakers should oppose legislation limiting the ability of cities and counties to regulate, tax or otherwise enact legislation stronger than state laws related to children’s health and healthy communities.

• State policymakers should support the repeal of existing state laws limiting the ability of cities and counties to regulate, tax or otherwise enact legislation stronger than state law related to children’s health and healthy communities.

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Spotlight

Local Maryland

In Maryland, 25 different advocacy groups formed a coalition to push back against industry-led preemption efforts. Let Our Communities Act Locally, known as LOCAL Maryland, focuses on mobilizing across sectors and issue areas to counter preemption and protect the ability of elected local officials to pass laws that support healthy families, a clean environment and good jobs. In their first year, they successfully lobbied to remove preemption language from a minimum wage bill.

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Spotlight

Faith in Texas

Faith in Texas is a multi-faith social justice movement that connect local faith leaders with lawmakers to explain how preemption laws hurt their constituents and interfere with their ability to live out their faith in public life. Their strategy of organizing through faith has been successful. In 2019, Faith in Texas successfully defeated a preemption bill that would have gutted local predatory lending laws that protect consumers from unfair terms for loans they don’t need or can’t afford.

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Fast Facts

150

Mayors from more than 150 U.S. cities say they see state interference as a barrier to local lawmaking. 

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12

12 states have passed laws that limit food and beverage policies at the local level.

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39%

In an online study of mayors, 39% reported that safe housing was the local issue most affected by state interference.

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Data to Share

The Partnership for Working Families found that state legislators preventing local leaders from passing laws on issues such as the minimum wage, paid sick leave and affordable housing can be particularly harmful to women and people of color.
Several industries have been involved in food and nutrition preemption attempts, including restaurants, retail merchants, the beverage industry, and industrial agriculture, which can view local public health policies as a threat to their business model.
Research shows that state lawmakers often support legislation that restricts local lawmaking abilities due to confusing bill language and not necessarily because they oppose the legislation itself.