Preemption occurs when a higher level of government restricts or withdraws the authority of a lower level of government to act on a particular issue. Historically, preemption was used as a point of negotiation in the legislative process. More recently, states have begun preempting local control over a wide-range of population and environmental health and social justice issues. In many cases, states are not enacting statewide standards, leaving a regulatory vacuum in those states on these topics of concern. Although state legislators often argue that preemption is necessary to provide uniform standards (which would be useful in many cases), preemption is often proposed at the behest of regulated industries as a form of deregulation rather than as a component of a statewide regulatory regime. State preemption can also undermine community self-determination and reflects a broader retreat from democratic values. Unlike state legislatures, local officials know the values and needs of their community and can aptly respond to those needs. Local governments are also often best positioned to address health and social disparities caused by inequities that are not present or obvious at a statewide level. Because values and needs at the local level may differ from those at the state level, states are increasingly using their preemption power to nullify local policies that reflect differing values between state and local (often urban) populations. This talk will explain preemption and provide examples in the context of food policy, firearm safety prevention, and paid sick leave, among others. Further, it will explain strategies that state legislators are using to pass preemption and identify legal barriers (and a few opportunities) to address preemption.
Jennifer L. Pomeranz, JD, MPH, Assistant Professor in the School of Global Public Health at New York University
Jennifer L. Pomeranz, JD, MPH, is an Assistant Professor in the School of Global Public Health at New York University. Her research focuses on public health law and policy. She is especially interested in policy and legal options to address products that cause harm, the food environment, and social injustices that lead to health disparities. Ms. Pomeranz is also one of the nation’s leading public health scholars on the legal tool of preemption. She is the first author of an upcoming textbook, Public Health Law in Practice, to be published by Oxford University Press in 2023, and authored the book, Food Law for Public Health, published by Oxford University Press in 2016, and over 100 articles in various journal-types on legal opportunities and barriers to enacting public health policies at the federal, state, and local levels. Ms. Pomeranz earned her Juris Doctorate from Cornell Law School and her Master of Public Health from the Harvard T.H. Chan School of Public Health.