Combatting Preemption: Myths and Facts

“It is not up to the state to tell the people at the local level what to do… They’re just using this to mask what the bill is really about, which is about taking away home rule.” – Mayor, Hernando, Mississippi

Lobbyists and legislators who support state and federal preemption across different issues often use the same messages to support ending local control over public health policy. These are some of the most common and predictable myths (and messages) promoted by the supporters of preemption. Each of these myths can be countered with evidence-based facts and research findings that public health advocates can use to combat preemption. These messages and counter-messages are shared with real-world examples.

Savings Clause: Express Protection Against Preemption

A savings clause is an explicit statement in a state or federal law that allows lower levels of government to enact stronger protections than those set by a higher level of government. When a savings clause is clearly written, it leaves no question that the legislature intended to allow for stronger local laws. This leaves room for progress at the local level and also helps guard against lawsuits challenging local authority.

Preemption Fact Sheet

Preemption occurs when higher levels of government (federal or state) eliminate or limit the authority of lower levels. Express preemption occurs when a law contains explicit preemptive language (a “preemption clause”). Implied preemption happens when a court finds that a law is preemptive even in the absence of preemptive language. To guarantee that a federal or state law is not preemptive, advocates must include a “savings clause” which preserves the authority of lower jurisdictions, e.g., “Nothing in this law preempts more restrictive local regulations or requirements.”

Combatting Preemption Training Overview

The Combatting Preemption Training is designed to educate local and state advocates on preemption and provide a practical guide to developing a strategy to successfully counter state and/or federal preemption. At the conclusion of the training, participants will be able to anticipate and recognize preemption, understand its impact, and develop a four-component strategy to focus resources and efforts effectively in combatting the threat of preemption.

Preemption Watch: Selected References and Resources

This list is intended to provide public health advocates and their allies with evidence and resources to better understand preemption and its impacts on communities. You will find links to selected peer-reviewed articles as well as other references that can assist advocates in developing a strategy to combat preemption, communicate with lawmakers and the media, and promote local control of public health policies.

What the Institute of Medicine says about preemption

States and localities play a vital and historic role in safeguarding the public’s health and safety. They can be “laboratories” of innovation, with greater flexibility than at the national level. Consequently, unless there are compelling reasons to the contrary, the federal government ought not preempt state and local authority in advancing the public’s health…