State preemption of local laws undermines local innovation and blocks local governments from advancing policies to advance public health, keep residents safe, preserve community character, and respond to local concerns. This troubling trend of states restraining local autonomy is a disservice to voters who deserve responsive and accountable governance.
According to Route Fifty:
“This is a national preemption movement that is occurring,” [CEO of the National League of Cities Clarence] Anthony told Route Fifty on Thursday. “We’re seeing that it’s unprecedented.”
“Local control is under attack,” he added.
It’s against this backdrop that the National League of Cities recently partnered with Temple University on a project to analyze preemption in 12 different policy areas, in all 50 states.
This project culminated in an online tool, where it’s possible to select a state from a map of the U.S. and to then see details about how state laws preempt local ones in each place.
There are two types of preemption – express and implied. Express preemption occurs when a state legislature explicitly confirms that only the state is allowed to legislate in a particular policy area. Implied preemption occurs when a state legislature has acted with such force that an intent to occupy the entire field must be implied. Implied preemption is not created by statute but rather is a doctrine developed in the courts.
Maryland courts have adopted, albeit inconsistently, a novel theory of State preemption over local actions – finding that counties may be preempted even without any State law explicitly stating so. This principle was used years ago to invalidate multiple local tobacco regulations, and more recently on local pesticide restrictions and land use decisions for energy facilities.
MACo 2020 Legislative Initiative: Repeal “Implied Preemption” Court Doctrine
MACo advocates for legislation to clarify, prospectively, that preemption should not take place in the courts, but in the open and accessible lawmaking process, where all stakeholders may be heard on the merits of their arguments.
MACo has partnered with LOCAL Maryland, a coalition of multiple stakeholders across many disciplines, with a common aim to prevent state intrusion into, and preemption of, local matters.
Stay tuned to Conduit Street for more information.