Martha Davis is a professor at Northeastern University School of Law.
In November, a city in New Mexico — a state where abortion is otherwise legal — enacted an ordinance blocking abortion clinics from operating. Local anti-abortion ordinances have also been enacted in Texas, Ohio, and Nebraska and proposed by local governments in California and Colorado. In Delaware, a local anti-abortion ordinance was struck down by a state court. These examples put a spotlight on an often-overlooked legal issue: if and when state law can preempt local law.
If you have heard of preemption at all, it is probably federal preemption. Grounded in the Supremacy Clause of the U.S. Constitution, federal preemption stands for the principle that federal law supersedes conflicting state law.
Federal preemption is still important, of course, but in recent years, it has been joined in prominence by state preemption. Under this doctrine, a state government can nullify a local law that conflicts with, or in some instances simply deviates from, state law. Often, these cases revolve around the power given to local governments either through the state constitution or through state legislation.
The legal doctrine that gives local governments expanded power over their local affairs is called “home rule.” Throughout its history, home rule has been juxtaposed with its more restrictive counterpart, Dillon’s Rule. Named for 19th-century Iowa Supreme Court Justice John Dillon, it provides that local governments possess only lawmaking authority that is either expressly delegated to them by the state or indispensable to the purposes of their incorporation. In most states, home rule and Dillon’s rule coexist, with one or the other coming into play depending on the subject matter, the size of the municipalities, and the relevant statutory schemes.
As political polarization has increased across the country, state preemption has been used more aggressively — often by red states against blue cities but also, as in the Delaware case below, to quash local conservative initiatives. No wonder, then, that state preemption litigation often involves hot-button political issues, such as local efforts to regulate abortion, enact gun control measures, or enforce Covid-19 restrictions.
This analysis spotlights three recent cases where state preemption principles played a key role and discusses principles to keep in mind when dealing with state preemption questions.
Delaware court rules against city ordinance restricting abortion
In December 2021, the city of Seaford, Delaware, enacted an ordinance mandating that all fetal remains resulting from an abortion or miscarriage be cremated or interred. The true aim was to complicate the operations of a new Planned Parenthood clinic, and the state attorney general challenged the local law in the Delaware Court of Chancery within days of its enactment.
In a strategic move, the state did not argue that the ordinance burdened access to abortion, thereby violating Delaware’s state abortion laws or the federal law in effect at the time. Rather, it argued that the Seaford ordinance conflicted with Delaware’s statewide statutory scheme for the disposal of human remains, which requires an official record of death before human remains can be cremated or interred and limits such records to fetal remains resulting from miscarriages and that have either reached a gestational age of 20 weeks or weigh more than 350 grams. Ruling in June 2022 in State ex rel. Jennings v. City of Seaford, the court held that the ordinance was preempted and invalid. According to the court, “the ordinance conflicts with this statutory scheme in that it requires that all fetal remains resulting from an abortion or miscarriage be cremated or interred. State law does not permit that result. As the City concedes, a junior sovereign cannot enact a law that conflicts directly with a law established by the senior sovereign.”
City gun ordinance upheld by California court
The Northern California city of Morgan Hill enacted an ordinance requiring that the theft or loss of a gun be reported within 48 hours. The city council believed that earlier notification would facilitate police investigations and might “reduce the chance of lost or stolen firearms being used in additional crimes.” However, California state law requires that missing guns be reported within 5 days rather than 48 hours. The ordinance was challenged by an individual gun owner and the California Rifle & Pistol Association, arguing that the local ordinance was preempted by the state law.
Reaffirming California’s recognition of cities’ broad powers to establish municipal standards in the arena of gun control, “where significant local interests may differ from one city to another,” the California Court of Appeal in Kirk v. City of Morgan Hill held that the ordinance was not preempted by state law. According to the court, there was no conflict and no preemption “because local governments are free to impose stricter gun regulations than state law.” The state law simply set a 5-day minimum standard that local governments could exceed.
Pandemic public health ordinance affirmed by Wisconsin high court
In the context of the Covid-19 pandemic, Wisconsin’s Dane County, home of Madison, enacted an ordinance making local public health orders enforceable by a civil action. Several individuals challenged the ordinance, arguing that it was preempted by state public health law.
After defeat in the lower courts, the plaintiffs appealed to the Wisconsin Supreme Court, which in Becker v. Dane County observed that state law preempts a local ordinance when the state legislature has expressly withdrawn the power of municipalities to act, the ordinance logically conflicts with state legislation, the ordinance defeats the purpose of state legislation, or the ordinance violates the spirit of state legislation. Mere overlap in subject matter was insufficient to establish preemption. After a thorough review of the state laws relating to public health, the court concluded that there was “no conflict—express, implicit, logically, or otherwise” between the local ordinance and any state law.
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These three cases, involving diverse jurisdictions and different issues, underscore some common issues in state preemption cases. First, know your state’s approach to local authority. In California, for example, prior case law establishing local government’s flexibility in addressing gun control was an important factor in upholding Morgan Hill’s ordinance. Second, when arguing for preemption, as in the Delaware case, it can be helpful to identify narrow areas of clear conflict rather than more conceptual tensions between state and local laws. Finally, as the Wisconsin court concluded, mere overlap is insufficient to establish preemption. Be rigorous in scrutinizing the alleged conflict. If an individual can comply with a local ordinance without violating the state law, there may not really be a conflict between the two.
Martha Davis is a university distinguished professor at Northeastern University School of Law. The views expressed are the author’s own and not necessarily those of the Brennan Center.