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Preemption
| Federalism |
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| •Key terms • Court cases •Major arguments • State responses to federal mandates • Federalism by the numbers • Index of articles about federalism |
Preemption occurs when a law at a higher level of government overrides or nullifies a law enacted by a lower level of government. In the U.S. federal system, federal law can preempt state or local law, and state law can preempt local law, depending on the constitutional and legal structure governing each level of authority.[1]
Background
In a federalist system, federal, state, and local governments all have the power to create laws and regulations. Sometimes, policies at different levels of government overlap or conflict. When this happens, the higher-level law preempts the lower-level law—rendering it unenforceable—provided the higher-level government has lawful authority to regulate in that area.
Conflicts over preemption may arise for various reasons, including policy differences, constitutional disputes, or partisan dynamics. For example:
- On October 28, 2021, the U.S. Department of Education under President Joe Biden (D) issued a cease-and-desist order against the Florida State Board of Education. The board, under Republican control, had been withholding funds from local school districts—such as Broward County—that adopted mask mandates in violation of a state order banning such mandates.
- In this case, the federal executive branch attempted to override state policy, while the state attempted to override local policy.
- Preemption disputes can also occur within the same political party. In 2017, New York Governor Andrew Cuomo (D) signed a state law blocking New York City’s proposed plastic bag tax. Both the state and city governments were controlled by Democrats, but the state exercised its authority to override the local ordinance.
Disagreements over preemption are often resolved through litigation in state or federal courts, depending on the level and nature of the conflict.
Click here to read more about conflicts between the federal government and the states. Click here to learn more about conflicts between state and local governments.
See also
External links
Footnotes
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