State Legislative Strategies to Pass, Enhance, and Obscure Preemption of Local Public Health Policy-Making

Overview

Local governments are often innovators of public health policymaking, and local control over public health issues is especially vital to address social inequities. But states are increasingly preempting, or prohibiting, local control over public health issues. In a new paper, Jennifer Pomeranz and Diana Silver of the New York University School of Global Public Health, systematically identified strategies to pass, obscure, or enhance preemption in five policy areas.

Findings

In this study, researchers conducted a content analysis of the full text of the bills from which preemptive laws in five policy areas (tobacco control, firearms, paid sick, food and nutrition, and civil rights) passed over a five-year period (2014-2018) for preemptive laws that remained in effect as of January 2019.

The authors identified five methods state legislators used during the five-year period to pass and support preemption:

• Pass preemptive bills quickly;
• Obscure preemption by: adding it to preexisting bills on non-relevant substantive topics, bundling preemption of multiple non-related topics, or titling bills in a way that does not reflect the substance of the bill;
• Repeal and replace preemption;
• Preempt litigation;
• Enact punitive preemption which permits lawsuits against local governments and local officials

Implications for Policy and Practice

In the United States, there is a lack of transparency over state policymaking that hinders public health action. Strategies employed by state policymakers and other proponents of preemption obscure public debate about preemption and the underlying public health and social justice issues at stake and the use of these strategies may be accelerating. By doing so, state legislatures concentrate power at state capitals and limit the capacities of local governments to protect their residents from public health harms while minimizing the nation’s ability to learn from local policy experiments aimed at improving public health.