State Legislative Strategies to Pass, Enhance, and Obscure Preemption of Local Public Health Policy-Making

Abstract

Local governments are often innovators of public health policy-making, yet states are increasingly preempting or prohibiting local control over public health issues. Previous research identified examples of strategies used by state legislatures to pass preemption in ways that may obscure public discussion about preemption or the topics preempted or enhance the strength of a previously passed preemptive law. To systematically identify strategies to pass, obscure, or enhance preemption, in 2019, the authors conducted a content analysis of the full text of the bills from which preemptive laws in 5 policy areas (tobacco control, firearms, paid sick leave, food and nutrition, and civil rights) passed over a 5-year period (2014-2018) for preemptive laws that remained in effect as of January 2019. This research identified 5 methods state legislators used during the 5-year period to pass and support preemption: (1) pass preemptive bills quickly (11 laws); (2) obscure preemption by adding it to pre-existing bills on nonrelevant substantive topics (4 bills), bundling preemption of multiple nonrelated topics (4 bills), or titling bills in a way that does not reflect the substance of the bill (1 bill); (3) repeal and replace preemption (2 laws); (4) preempt litigation (1 law); and (5) enact punitive preemption (7 laws). Strategies employed to pass preemption obscure public debate about preemption and the underlying public health and social justice issues at stake while minimizing the ability of local governments to protect their populations and the nation to learn from local policy successes.