Public Health Preemption Law: A Backgrounder
Kathryn Randolph, State and Local Justice Fellow
Georgetown Project on State and Local Government Policy and Law
Clashes between states and localities on COVID response policies have made the news since government responses to the pandemic began. Georgia’s governor sued the mayor of its largest city to prevent enforcement of a municipal mask mandate. Florida prohibited schools from installing their own mask mandates. Texas’ Attorney General threatened lawsuits against local officials that passed and enforced certain policies to stem the transmission of COVID-19 . State officials in South Carolina questioned local officials’ authority to address public health emergencies in general. COVID-19 responses, as the latest lightning rod in American politics, were bound to get the preemption treatment, joining other politically divisive public health problems.
The problem of public health preemption did not start with the pandemic, though. Cities are not mentioned at all in the United States constitution, and each state has a slightly different approach to municipal authority. State-level preemptive measures are becoming increasingly common in a number of policy areas, constraining local authority and often leaving regulatory vacuums (areas in which the state has taken exclusive power to regulate yet declined to do so). Preemption has been common in the public health realm, partially because of the role of industry lobbies with vested interests in how governments approach public health issues like smoking or nutrition. Some theorize that various industries may be invested in keeping policymaking at the state level because “[a]t the local level… industry influence wanes considerably,” as “[m]ost industries cannot afford to place lobbyists in every community, contribute to numerous local campaigns, nor even keep abreast of every proposed piece of local regulation which may concern them” and, on the local level, “trade associations and other industry representatives are seen as outsiders rather than bona fide constituents.”
Tobacco use and sale generated widespread local action and accompanying state preemption of those actions. A Public Health Law Center (PHLC) presentation calls the 1990s as “the (first) Golden Age of preemption.” During that decade, government investigations into and litigation against tobacco companies ramped up; the dangers of smoking, including secondhand smoke exposure for non-smokers, were well-publicized. The particular harm to those who began smoking at a young age caused significant concern, generating regulations specifically targeted at reducing youth smoking, which had increased during the 90s. Subsequent public health measures included creating “smoke free” spaces and tightening regulations on the sale of tobacco products. However, unsurprisingly, the tobacco industry remained resistant to regulations that would cut down on tobacco use and therefore on tobacco sales. Despite growing public support for regulations on tobacco, state legislatures started making it harder for local governments to act.
Research cited by PHLC found that over the course of the decade “[s]tates with smoke-free preemption increased from 7 to 17” and those with “youth access/point-of sale preemption increased from 1 to 22.” Some of the first prominent indoor smoking bans or restrictions had originated in major cities like New York and Los Angeles in the 80s and 90s. Acting “quietly and behind the scenes,” the American tobacco lobby had pushed state legislatures to block certain local regulations of its products. Many states still preempt local smoke free air or youth access policies. Regulation of tobacco products and nicotine has returned to the forefront as new methods of consumption have become popular, especially among teenagers. Preemption has raised its head again with respect to local regulations of vaping, playing out the same pattern for new modes of nicotine consumption. Possible federal preemption of state actions may have a new role in the world of e-cigarette regulations, too, given the presence of the Tobacco Control Act, which was not passed until 2009.
Preemption also touches illegal substance use. There is room for significant innovation in this area, as there are a variety of approaches to addressing substance abuse and attempting to put an end to deaths related to overdoses or transmissible diseases spread through needle sharing. With respect to narcotics, federal law also has a significant role in preempting local policies, as federal controlled substances classifications and associated criminal statutes constrain state and local behavior. For example, evidence suggests that providing supervised injection sites or safe consumption sites for use of dangerous drugs can reduce overdose deaths among drug users, many of whom are addicted to these drugs. For those with serious addictions, threats of legal consequences or physical harm may not be strong enough deterrents to prevent drug use; this leaves public health officials with the challenge of minimizing harm for those who continue to use drugs. Some public health researchers and elected officials have proposed supervised sites in cities like San Francisco, New York, and Philadelphia.
Outside of conflict with federal law, localities would have to contend with state law that could expressly ban such sites. When Safehouse, the nonprofit behind the proposed Philadelphia site, first floated its proposal, state legislators immediately responded with efforts to preempt local supervised injection sites, in case the relevant federal statute was not interpreted as blocking safe injection sites, as one federal trial court concluded. The project was ultimately halted by a suit from the U.S Attorney for the Eastern District of Pennsylvania, who sued to enjoin operation of such a site. It is also possible that an administration favorable to these harm reduction policies would decline to apply the law against safe injection sites. Some states supplement federal law with state laws that would prevent implementation of certain harm reduction policies. State criminal law can prevent certain harm reduction policies. “A syringe exchange program authorized by Atlantic City was successfully challenged in court by a local prosecutor, who argued [it] was prohibited by a state drug law. On the other hand, many other municipalities, including Philadelphia, Cleveland, Los Angeles, and San Francisco, authorized syringe exchange programs at the local level and were never challenged,” according to an Abell Foundation report.
In Indiana, “[t]he Home Rule Act’s preemption provision also directly implicates SIFs and SEPs because possession of drug paraphernalia is in the purview of the State,” meaning that a state statute was required to provide “immunity for the operators” of needle exchanges before they could provide services. Other states would have to affirmatively pass bills at the state level to permit supervised injection pilot programs at the local level, as is the case in Colorado. A preemption bill that would exert “state preemption over the field of safe injection sites” was proposed in Washington state in 2017. In this case, opposed community groups and negative public opinion of drug use are more likely than industry players to urge states to intervene and preempt local harm reduction measures. In states where such measures are preempted, even communities that have rallied sufficient support for them cannot implement them.
On the other hand, certain states have advocated measures like “syringe services programs,” commonly called “needle exchanges,” and have taken action to prevent localities from barring their operation, preempting them from blocking such harm reduction measures. The California Department of Public Health noted that a state statute allows the Department to authorize qualified and staffed entities to provide syringe exchange services and that local governments are preempted from prohibiting these entities from operating within their jurisdictions. In California, “the State Department of Public Health may, notwithstanding any other law, authorize entities… that have sufficient staff and capacity to provide the services described… to apply for authorization under this chapter to provide hypodermic needle and syringe exchange services consistent with state standards in any location where the department determines that the conditions exist for the rapid spread of HIV, viral hepatitis, or any other potentially deadly or disabling infections that are spread through the sharing of used hypodermic needles and syringes.”
States have also intervened as local governments tried to address concerns about health and nutrition. From menu labeling to product taxation, localities have experimented with different policies in hopes of cutting down on health issues related to diet. State laws targeting local taxation have been framed as measures to keep consumers’ food costs low. One example is the Washington State “Keep Groceries Affordable” initiative, passed in 2018 with 55% of the vote. Just as preemptive statutes prohibiting local tobacco regulations were backed by industry players, this preemptive statute blocking local taxes on soft drinks was backed by the soft drink industry. A similar measure failed in Oregon, where public health groups were able to pour more money into the campaign to defeat it and compete with industry in the messaging battle. Michigan, California, and Arizona have similar measures on the books. In a lawsuit assisted by ChangeLab Solutions, a California court held that the state’s home rule doctrine prohibited the state legislature from interfering with administration and collection of taxes in the way that the soda tax preemption law would require.
Many environmental concerns are also connected to public health, as production and use of fossil fuels has an impact on air quality. A Harvard study concluded “that air pollution from burning fossil fuels like coal and diesel was responsible for about 1 in 5 deaths worldwide.” A number of measures geared towards reducing production and use of fossil fuels–a change that could save numerous lives in the United States–have become targets for preemptive measures. Some states preempt regulation of hydraulic fracturing (fracking), despite concerns from localities about public health consequences related to the natural gas extraction procedure. Whatever the impact on local drinking water sources, it’s indisputable that the procedure is loud and disruptive, generating air pollution including “dust, volatile organic compounds, nitrogen oxides, sulfur dioxide, and methane,” which “can reach high levels near well sites, potentially causing public health problems.” Tennessee passed a measure to prevent local officials from making crucial decisions about pipeline projects in their jurisdictions. Their measure mirrored similar bills in North Carolina, Virginia, and Iowa. Other states have placed roadblocks in the way of local efforts to eliminate fossil fuels from their own energy portfolios. For example, “[a] 2021 bill signed by Florida Governor Ron DeSantis… bars local governments ‘from restricting fuel sources distributed and used by electric and gas utilities, power generators, pipeline operators and propane dealers.’” Georgia and Missouri have similar provisions. Again, significant industry lobbying–this time from oil and gas interests–has influenced states to pass preemptive measures prohibiting local controls on fracking. Similar interests are involved in preemption measures blocking local bans or regulations on single-use plastics, primarily plastic bags.
Gun deaths can also be considered under the umbrella of public health. “Gun violence is a leading cause of premature death in the U.S. Guns kill more than 38,000 people and cause nearly 85,000 injuries each year,” according to the American Public Health Association. However, a number of states have passed preemption laws that significantly limit localities’ authority to regulate guns. These localities now are prohibited from implementing constitutional gun control policies; the states surrounding them have decided to provide protection for gun ownership and possession that goes above and beyond the rights laid out in the Second Amendment. In his overview of preemption and gun control, Professor Joseph Blocher of Duke Law School refers to this pattern of preemption as creating a “statutory Second Amendment.” Again, interest group lobbying plays a significant role in creating state preemption policies that limit localities’ authority to regulate guns. Though the NRA’s influence is waning, other lobbying groups are stepping in to fill the gap. Professor Blocher states that “[a]lthough the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws.”
However, states may start bucking the trend in the face of significant gun violence. Colorado removed its preemption law following the 2021 Boulder grocery store shooting. “While the city’s assault weapons ban likely would not have stopped this latest mass shooting, Colorado Senate Majority Leader Steve Fenberg said the tragedy showed the legislature had a responsibility to allow communities to protect themselves in the absence of strong federal and state gun laws.” The bill “made Colorado the first state in the country to overturn its preemption law. Forty-two other states have laws stopping local governments from enforcing strict gun restrictions.” Research by Everytown for Gun Safety points out the bizarre results of stringent state preemption of gun laws: “In Pennsylvania, for example, the state legislature has prohibited guns in the state capitol and on state agency property, but it has preempted local governments from regulating firearms—so guns cannot be restricted in municipal buildings, or in any city or town hall.”
In addressing the pandemic, “[a] few states created ‘regulatory floors,’ allowing local governments to go beyond state action, others created ‘regulatory ceilings’ on local policymaking, and others created ‘regulatory vacuums’ by refusing to act and telling local governments they lacked the authority to make policy,” according to the Ohio State Law Journal. Governors have also begun to take direct action to preempt localities, going around legislatures entirely and issuing preemptive executive orders. Some might have argued that states choosing to preempt local action were doing so in order to ensure uniformity in their pandemic response, but this didn’t seem to be the case. Instead, it seems more like states preempting local action were trying to ensure that there was no visible pandemic response at all. The Urban Institute found that “[s]tates with more preemption laws pass fewer state-level bills related to COVID-19,” possibly reflecting “a belief that lawmaking is not appropriate at either the local or state level.” Attorneys and public health researchers Jessica Amoroso and Sarah Winston found that regulatory vacuums created significant problems for COVID-19 response policies.
On the other hand, creating “regulatory floors” “allowed local governments to be more protective of public health based on local conditions,” according to information compiled by the American Constitution Society. Under this framework, localities could take “a flexible community-based approach to lifting the state’s stay-at-home order, with county leaders making decisions regarding the timing of reopening in their jurisdictions.” In heavily preemptive states, local leaders are afraid that they will be hamstrung in the event of a future crisis, forbidden to act by state law and housed within a jurisdiction that has proven hesitant to act on the state level.
States that have aggressively asserted preemption authority have also ramped up threats against localities or their elected officials that defy the state rules. These threats include “financial penalties, withholding of government funding for noncompliance, removal from office, elimination of local authority altogether, or criminal sanctions. This is sometimes referred to as hyper preemption or preemption plus.” Nebraska’s governor threatened to withhold federal COVID funds from localities that required masks. Florida’s legislature floated the idea of imposing penalties against school districts that imposed mask mandates. The state already successfully docked the pay of school board members that put school mask mandates in place, withholding their salaries (though the federal government stepped in to reimburse these board members for their losses). The litigation surrounding a mask mandate in Leon County schools eventually ground down school board members, who voted to lift their mandate before the court case regarding that mandate concluded. “I feel like it’s becoming a power struggle,” said one board member after the vote.
An end to the preemption wars seem nowhere on the horizon. Advocates need to understand their state’s constitutional provisions and the levers of policy change so that public health innovation can continue on the local level and through state agency action.
Want to learn more about preemption? Join us June 7 from 1pm to 2:30pm Eastern for a webinar presented by the Georgetown Project on State and Local Government Policy and Law, ChangeLab Solutions, and the O’Neill Institute for National and Global Health Law.