State Preemption: A Significant and Quiet Threat to Public Health in the United States

Abstract

State and local governments traditionally protect the health and safety of their populations more strenuously than does the federal government. Preemption, when a higher level of government restricts or withdraws the authority of a lower level of government to act on a particular issue, was historically used as a point of negotiation in the legislative process. More recently, however, 3 new preemption-related issues have emerged that have direct implications for public health. First, multiple industries are working on a 50-state strategy to enact state laws preempting local regulation. Second, legislators supporting preemptive state legislation often do not support adopting meaningful state health protections and enact preemptive legislation to weaken protections or halt progress. Third, states have begun adopting enhanced punishments for localities and individual local officials for acting outside the confines of preemption. These actions have direct implications for health and cover such topics as increased minimum wages, paid family and sick leave, firearm safety, and nutrition policies. Stakeholders across public health fields and disciplines should join together in advocacy, action, research, and education to support and maintain local public health infrastructures and protections.

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State Preemption of Local Paid Sick Days and Nutrition and Nondiscrimination Laws: United States, February 2017 ^aMississippi adopted legislation in 2016 that grants special rights to citizens who hold 1 of 3 sincerely held religious beliefs or moral convictions reflecting disapproval of lesbian, gay, transgender, and unmarried persons. A Mississippi district court found the law to be unconstitutional and the case is on appeal to the 5th Circuit. If this law is upheld, inconsistent local ordinances protecting lesbian, gay, bisexual, transgender, and questioning persons from discrimination would be preempted. ^bArizona has a form of “blanket” preemption. By notifying the state attorney general, a single legislator can freeze the transfer of state revenue-sharing funds to localities that adopt laws that “violate state law or the state constitution.” Arizona has also adopted individual laws preempting local paid sick days and nutrition ordinances.