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70 Stan. L. Rev. 1995 (2018)
The Challenge of the New Preemption

handle is hein.journals/stflr70 and id is 2035 raw text is: ESSAY
The Challenge of the New Preemption
Richard Briffault*
Abstract. The past decade has witnessed the emergence and rapid spread of a new and
aggressive form of state preemption of local government action across a wide range of
subjects, including among others firearms, workplace conditions, sanctuary cities,
antidiscrimination laws, and environmental and public health regulation. Particularly
striking are punitive measures that do not just preempt local measures but also hit local
officials or governments with criminal or civil fines, state aid cutoffs, or liability for
damages, as well as broad preemption proposals that would virtually end local initiative
over a wide range of subjects. The rise of the new preemption is closely linked to the
partisan and ideological polarization between red states and their blue cities.
This Essay examines the spread of the new preemption and explores the legal doctrines
available to local governments for challenging it. It argues that the more extreme
preemption measures threaten the capacity for local self-government and are at odds with
the values of local autonomy, the cornerstone role local governments play in our
governmental structure, and the widespread state constitutional commitment to home
rule. It also considers whether arguments about localism, like arguments about federalism,
are really just about means to specific policy ends. It concludes that particularly in the
current era of polarization, our system ought to protect some local space for self-
determination for problems that arise at the local level.
* Joseph P. Chamberlain Professor of Legislation, Columbia Law School. This Essay
benefited from comments on a preliminary draft provided by the participants at the Sixth
Annual State and Local Government Works-in-Progress Conference at Golden Gate
University School of Law, as well as from workshop presentations at Columbia Law
School and Northwestern University Pritzker School of Law.


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