State Legislators Increasingly and Covertly Preempt Local Public Health Policymaking
Even as the COVID-19 pandemic raged, state legislators continued to quietly pass laws that consolidate power in state capitals and take away local governments’ authority to protect public health. Oklahoma is the latest example.
On December 2, 2019, a bill was introduced in the Oklahoma State Legislature authorizing a program that defers prosecution for certain crimes. The bill moved through the legislature and various committees and onto the floor with minor amendments. Then, on May 13, 2020, legislators introduced a new version of the bill (PDF), “striking the Title, the Enacting Clause, the entire bill…,” renamed it to focus on the Catastrophic Health Emergency Powers Act, inserted new language and tacked the original deferred prosecution program onto the end.
The May version of the Oklahoma bill provided catastrophic health emergency powers to the governor and state officials. The bill ensured that only the governor could grant local officials clearly defined authorities during a catastrophic health emergency. As reported in the press, the bill stripped “local officials of the authority to separate ill or exposed people, issue vaccinations, and take other steps to prevent, manage, and contain health threats.”
On May 14, 2020, this new bill passed the Oklahoma House the day after it was introduced. It was sent to the Senate next, who adjourned without passing the bill but managed to pass a different preemptive law the next day. On May 15, 2020, the Oklahoma House passed a bill, previously passed by the Senate, preempting local authorities from passing “red flag” laws that restrict firearm access for people considered an imminent danger to themselves or others. The state legislature sent this bill to the governor the same day, and he signed it into law the following week.
These tactics are not new. This strategy is just one of many we found state legislators to have used to pass, obscure, and support preemption−often in favor of commercial interests and the at the behest of industry− from 2014 through 2018, in the context of tobacco control, firearms, paid sick leave, food and nutrition, and civil rights (notably related to LGBTQ discrimination).
Our study, published in the American Journal of Preventive Medicine, found that state legislators
(1) passed preemptive bills quickly (in less than one month); (2) obscured their actions by adding preemption to preexisting bills on unrelated topics, bundling preemption of multiple unrelated topics or titling bills in ways that did not reflect a bill’s substance; (3) publicly repealed a controversial law preempting civil rights and paid sick leave but replacing it with identical preemption; (4) preempted litigation; and (5), in the context of firearms, enacted punitive preemption, allowing local governments and officials to be sued for acting in a way the state deems preempted.
Though we found that most preemptive bills passed through state legislature in two to six months, we identified 11 bills that passed through both houses in fewer than 19 days, most within 1 to 4 days. We also identified four instances, in addition to the Oklahoma emergency powers bill described above, where preemption was added to preexisting bills on unrelated topics:
- Preemption of paid sick leave was added to a bill outlawing puppy mills in Ohio.
- Preemption of food and nutrition policy was added to a California state budget bill.
- Preemption of tobacco control was added to a bill addressing kidney disease and funding dialysis centers in Hawaii.
- A Pennsylvania bill establishing scholarship programs was gutted and replaced with a state budget that included the preemption of tobacco control within days.
These preemption strategies, employed by state policymakers and other proponents, obscure not only the public debate about preemption but the underlying public health and social justice issues at stake. And our research suggests that legislators may be increasing their use of these strategies to obscure preemption.