Preemption and Entrenchment of the State/Local Divide

Abstract

Recent state legislative enactments that preempt local legislation also include novel provisions that impose significant penalties on municipalities or individuals who challenge the state’s action. These penalties include loss of funding or loss of office for localities or officials who assert a local right to pursue policies in conflict with the state legislation. Notwithstanding widespread criticism of the practice, commentators have concluded that the traditional conception of the state’s plenary power over its municipalities, a restrictive view of home rule, and the absence of a federal constitutional violation leave affected municipalities and individuals with little legal recourse against “penalty preemption.” This article proposes an interpretation of state constitutions under which penalty preemption would largely be declared invalid. That interpretation asserts that state constitutions do not, in fact, provide legislative authority over political subdivisions that is as plenary as states have asserted. Instead, state constitutions have historically been interpreted as containing both explicit and, importantly, implicit principles that constrain legislative action. Courts have invoked those implicit principles to invalidate legislation enacted at the behest of a politically dominant group that is seeking to entrench its current majority position over an area that is reasonably viewed as subject to the vicissitudes of normal politics. This article contends that the proper allocation of authority between states and their political subdivisions constitutes such an area of contestation. By entrenching the dividing line between state and local authority, penalty preemption legislation represents an exercise of raw political power rather than an effort to allocate government authority in accordance with any principle that is appropriate for state preemption. Courts have the capacity to invalidate legislative entrenchment of the state/local divide that constitutes such an assertion of political power just as they done with respect to other efforts to entrench temporary majorities.