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. 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.
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, or sugary drink taxes. Floor preemption is when a higher level of government passes a requirement that lower levels of government cannot go below. The national minimum wage is an example of floor preemption.
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, particularly marginalized communities. When they are stopped from passing laws to do so, the health of their residents suffers. For example, California has state legislation preventing localities from passing sugary drink taxes, which some jurisdictions may want to consider in order to reduce sugar consumption and raise revenues during the ongoing recession caused by COVID-19.
• State policymakers should oppose legislation limiting the ability of cities, counties, and towns to advance health equity through regulation, taxation, or legislation related to children’s health and healthy communities.
• State policymakers should support the repeal of existing state laws limiting the ability of localities to advance health equity through regulation, taxation, or legislation related to children’s health and healthy communities.
Assessing & Addressing Preemption
This toolkit, created by ChangeLab Solutions, helps policymakers, advocates, and stakeholders address preemption threats to the advancement of health equity. It identifies three scenarios that a local policy campaign may face, offering guidance on how best to respond to threatened, proposed, or enacted state preemption of health-promoting policies.
Advocating for Local Control
This toolkit from Voices for Healthy Kids was designed to help changemakers advocate for local governments maintaining their ability to pass laws about issues that are important to their communities. It includes fact sheets, graphics, and success stories.
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.
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.
Mayors from more than 150 U.S. cities say they see state interference as a barrier to local lawmaking.
12 states have passed laws that limit food and beverage policies at the local level.
In an online study of mayors, 39% reported that safe housing was the local issue most affected by state interference.