JURIST Guest Columnists, Sarah Wetter and James G. Hodge, Jr. of the Sandra Day O’Connor College of Law, Arizona State University, discuss preemptive legal schemes that deprive states and localities of opportunities to implement efficacious interventions to advance public health…

The constitutional legal doctrine of preemption refers to how state or local laws may be invalidated expressly or impliedly by laws at higher levels of government. Preemption has the potential to improve public health standards by leveling efforts across jurisdictions. However, federal and state governments can also use preemption to block or foreclose lower level public health innovations across an array of areas (e.g., nutrition, gun control, paid sick and safe time (PSST)).

Worse yet, preemptive laws are increasingly supplemented with penalties, loss of authority, or other disincentives for noncomplying lower-level governments. These “preemption plus” schemes deprive states and localities of opportunities to implement efficacious interventions to advance public health.

This commentary explains preemption plus tactics and corresponding risks, particularly the chilling of local public health innovations in legally-suspect ways.

Preemption Plus Strategies and Trends

Whether flowing from federal supremacy or state sovereignty, preemption is designed to assure order among competing laws across governments. However, complications arise from the dual capacities of preemption to promote or hinder diverse public health objectives. For example, federal preemption may be used positively to create a national baseline for public health interventions (e.g., minimum menu labeling standards). Conversely, it can be wielded by law- and policy-makers to stymie public health legal innovations.

Inclusion of punitive provisions in preemption legislation or regulation present an even greater threat to public health authority. Federal and state law- and policy-makers are turning to “plus” strategies that exceed traditional boundaries or specific targets of preemption. They include divisive provisions [PDF] imposing direct threats or excessive fines, threatening substantial loss of funds, or broadly stripping existing local powers. State or localities are essentially forced to comply with laws that are antithetical to public health.

For example, several state legislatures punish local actors seeking to implement ordinances or other laws contrary to state prerogatives. A 2011 pro-gun preemption statute in Florida penalizes offending local officials with fines up to $5,000, loss of governmental immunity to lawsuits, and even removal from public office or employment. A 2015 Michigan state bill would require rapid repeal of preempted local firearm ordinances, allow lawsuits against non-compliant local officials, and make localities accountable for associated legal costs and fines.

Massive funding withdrawals are another tactic. A 2016 Arizona statute authorizes the attorney general to investigate any local action allegedly preempted by state law and withhold all state funds from offending localities. Threats of defunding alone in Arizona have curtailed local public health initiatives to implement PSST in Tempe, ban plastic bags in Bisbee, and melt down guns confiscated by police in Tucson. In 2017, Tucson lost a judicial challenge of the statute, resulting in its complete repeal of its ordinance. President Trump’s Executive Order 13768 and dozens of state bills propose the withdrawal of certain federal or state funds from “sanctuary cities” that allegedly run afoul of immigration laws.

Other localities may find the full range of their “home rule” authority swept away. After the city of Denton banned fracking via local ordinance, Texas’ legislature could have just preempted all local fracking laws. Instead, it enacted a bill in 2015 banning localities from regulating any facets of oil and gas operations. Another bill proposed in the same legislative session would have prohibited adoption of local laws on all matters, including health, safety, and welfare.

Public Health Implications of Preemption Plus Strategies

Since multiple factors contribute to preventable morbidity and mortality, correlating preemptive strategies and negative public health outcomes is difficult. Still, repercussions of preemption plus tactics on public health interventions are felt across various domains.

Nutrition. Over 70% of U.S. adults are overweight or obese. Innovative proposals to curb obesity and overweightness proliferate. Many localities proffer science-backed laws and policies [PDF] to curb food or drink portion sizes, inform consumers on nutritional content, and restrict food marketing to children. Multiple municipalities, however, are essentially barred from similar proposals via preemption plus. Almost 1/3 of populations in Ohio and Kansas are obese. In Mississippi, nearly 40% (~800,000 adults) are obese, placing it second highest among all states. Still, these states’ legislatures have sweepingly removed local nutrition-related authorities. Ohio and Mississippi [PDF] eliminated local authority to prohibit toys from kids’ meals, require restaurants to post calorie counts, and regulate food service operations on the basis of health disparities. Kansas law removes virtually all local authority over nutrition, food policy, and farming practices.

In Arizona, over 17% of kids are obese, ranking it as the 15th highest state for childhood obesity. Yet Arizona (1) prohibits local regulation of restaurant-provided incentive items, and (2) preempts localities from taxing sugar sweetened beverages (SSBs) despite early evidence suggesting even modest SSB taxes can decrease sales and consumption, especially among lower income consumers. Both of these state-level policies are backed by the afore-mentioned preemption plus funding scheme. As a result, any Arizona municipality that attempts to ban toys from kids’ meals or tax SSBs stands to lose all its state funding.

Gun control. On February 14, 2018, the school shooting at Marjory Stoneman Douglas High School in Parkland, Florida (17 dead, 15 injured) fueled national calls for strengthened firearm legislation. While the “right to bear arms” via the 2nd Amendment may proscribe overly-aggressive gun control measures, preemption is a prime mechanism used to tamp down reasonable gun control innovations. All but seven states (CA, CT, HI, MA, NE, NJ, NY) broadly preempt local firearm regulations. Each of the non-preempting states is ranked within the top 11 states with the lowest firearm-related mortality rates (as of 2016).

In non-preempting states, localities have demonstrated efficacy in reducing gun violence through laws such as stronger licensing provisions, safer gun storage requirements, bans on deadlier weapons/accessories, and purchase restrictions (e.g., age limits, waiting periods). California state law requires online ammunition purchases to be sent to a licensed vendor (rather than one’s home) with accompanying processing fees. It is a new statewide measure predated by similar ordinances in Sacramento and other California cities.

Conversely, states with expansive firearm-related preemptive laws may forego local innovations. Preemption plus laws in at least five states (AZ, IA, KY, MN, MS) mimic Florida’s harsh penalties against local officials who enact or enforce contrary gun laws. Stripping local legislative roles through threats of judicial or executive interventions intimidate officials from proposing and enforcing laws designed to reduce gun violence and enhance community safety.

Paid sick and safe time. During the 2009 H1N1 outbreak, 7 million U.S. H1N1 cases were attributed to employees coming to work sick, ultimately contributing to 1,500 deaths. Many of the more than 50 million American workers lacking PSST benefits come from low income or single parent households unable to afford even a single unpaid day off of work. PSST laws in Seattle and other locales have demonstrated efficacy in reducing the spread of contagious diseases, such as seasonal influenza, as compared with non-enacting jurisdictions. They lead to increased use [PDF] of treatment and preventive care, improved family health, and stabilized income and employment. In 2015, President Obama signed an executive order mandating PSST for federal contractor employees. As of February 2018, 9 states, D.C., and over 30 U.S. localities legally require employers to grant eligible employees PSST benefits.

Yet a wave of states’ legislatures have expressly preempted local PSST efforts. In Arizona, Tempe’s consideration of a PSST ordinance was quashed in 2016 due to the state’s preemption plus law. Fortunately, Tempe’s proposal lent to a state-wide PSST law providing similar protections the following year. These benefits may be short-lived. In 2018, the Arizona Legislature is considering a resolution to eliminate the mandatory PSST provision. Proposed federal legislation [PDF] to prohibit all state and local PSST mandates while providing minimal benefits for workers remains in Congressional committee review. Preempting state and local PSST laws threatens the health of workers, their families, and all Americans.
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Like a double-edged sword, preemption may be wielded to ensure uniform, baseline standards essential to public health promotion. Conversely preemption plus strategies have reduced the capacity of state and local governments to advance responsible public health regulations. Funding withdrawals, elimination of authority, and penalties including fines, lawsuits, and removal from office affect multiple public health arenas. Absent greater challenges, the rise of preemption plus laws forecloses local public health innovations essential to averting existing and emerging public health threats and advancing health equity.

Sarah Wetter, J.D., is a Research Scholar, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU. James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU.

Suggested citation:Sarah Wetter and James G. Hodge, Jr.Impacts of Preemptive Legal Strategies on Public Health, JURIST &#8212 Academic Commentary, Apr. 5, 2018, http://jurist.org/forum/2018/04/wetter-hodge-preemptive-public-health.php