Punitive Preemption and the First Amendment

Author(s)

Rachel Proctor May

Details

Faculty editor: Lawrence A. Alexander
Publication: Law Review
Volume: 55
Issue: 1
Start Page: 1
Month: March
Year: 2018
Type: Article
Instititional Repository (IR): View full article

Abstract

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form of public deliberation with the potential to influence other city, state, and national audiences. Moreover, because a state’s power to preempt turns in part on the division of state and local power under a state’s constitution, it is not necessarily self-evident whether a state legislature can preempt a local law until a court so holds. Traditional preemption, therefore, represented a push and pull between local and state governments, under which the state enjoyed broad, but not absolute, power to preempt. By prohibiting this push-and-pull, punitive preemption represents an expansion of preemption doctrine because it prohibits local governments not only from passing laws local majorities favor, but also from challenging the state’s view of preemption in court. This Article argues that by foreclosing public debate and preventing local governments from challenging the state’s view of preemption as a practical matter, this new breed of punitive preemption implicates the First Amendment’s normative concern with democratic deliberation, and several specific strands of recognized First Amendment doctrine. Specifically, punitive preemption implicates First Amendment limitations on passing laws to limit public debate, on viewpoint discrimination within a state-created forum, and on laws designed to insulate the state from challenge. The Article concludes that punitive preemption likely stretches the state’s power to preempt beyond constitutional boundaries.