Government exists to protect our rights, health, safety, and welfare
We have government to protect our rights, health, safety, and welfare. That’s fundamental to our theory of government. When a legislature enacts a law that isn’t rationally connected to protecting health, safety, or welfare, the law can be challenged in court as being “arbitrary and capricious” and, if the court finds it to be so, then it is nullified. If a legislature enacts a law that violates someone’s rights, the validity of that law itself can be challenged, and nullified. Laws that don’t protect our rights, health, safety, and welfare are not laws at all. They are unconstitutional; they are illegal laws.
Preemption is not a neutral principle
But we also have a system of law that allows state governments to prevent local governments from enacting laws to protect people’s rights, health, safety, and welfare, and allows the federal government to prevent both state and local governments from doing the same. This system of law is called preemption. Preemption is a set of rules devised by the courts about which law “trumps” when there is a conflict between laws enacted by different levels of government: local, state, and federal.
Preemption is presented by the courts as a neutral principle of federalism…. But preemption has always been political.
In preemption analysis, as the courts have devised it, there is no regard for whether the trumped law is more or less protective of people’s rights, health, safety, and welfare. The question for the court is usually whether there is a conflict between the two laws. If so, it is supposedly axiomatic that the state law would preempt (aka trump, or overrule) the conflicting local law, or the federal law would preempt the conflicting state or local law.
Preemption is presented by the courts as a neutral principle of federalism. In a system of hierarchical governments in which different vertical levels of government (local, state, federal) can all enact similar laws, preemption provides the answer to potential conflicts. But preemption has always been political. Just go back to the history of McCulloch v. Maryland to see the rife controversy around which law is valid: state law or federal law.
Ceiling preemption prevents governments from protecting rights, health, safety, and welfare
We can divide preemption into two categories: floor preemption and ceiling preemption. Floor preemption is where the federal or state government sets a minimum level of rights, safety, health, or welfare protection below which states or local governments cannot go. For example, the federal minimum wage sets a minimum wage floor – but it doesn’t preempt state and local governments from setting higher minimum wages. That’s floor preemption, and we’re not taking issue with floor preemption.
Ceiling preemption, on the other hand, is where the federal or state government sets a cap – a ceiling – on how much state or local governments can protect people’s rights, health, safety, and welfare. About half the states have minimum wage laws that prevent local governments from enacting higher minimum wage laws. That’s ceiling preemption, and we think it’s wrong. Not just wrong – it should be unconstitutional.
Reprinted from: http://all-len-all.com/preempting-democracy-whats-not-being-voted-on-this-november-is-sinister/
So today, ceiling preemption has become a weapon used by state legislatures to prevent local governments (mostly cities and counties) from passing laws that the state legislature opposes. The National League of Cities’ report “City Rights in an Era of Preemption: A State-by-State Analysis” details how frequently state legislatures use preemption to prevent local governments from raising protections for people’s rights, health, safety and welfare. Even the Center for Disease Control has identified ceiling preemption as a barrier to public health laws. The Partnership for Working Families provides an interactive map revealing how pervasive state preemption is across the U.S. for a broad range of issues.
At the federal level, the current administration and Congress are also weaponizing preemption. They’ve been arguing against cities having any authority to protect undocumented residents. From April 2018, they’re proposing to freeze automobile fuel economy targets, which the Los Angeles Times says is “the single biggest step the administration has taken to undermine efforts to combat climate change.” California officials and environmental groups plan to fight, but under our system of ceiling preemption, they are fighting uphill.
Ceiling preemption should be unconstitutional
We called this article “Ceiling preemption is UnAmerican.” That isn’t patriotic grandstanding, it’s historical fact.
The first grievance against the King in The Declaration of Independence is “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” In other words, the colonial legislatures tried to make laws that the King didn’t allow.
The second grievance in the Declaration is “He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.” Again, the King wasn’t letting the people make the laws they needed to protect their rights, health, safety, and welfare.
The third grievance is along the same lines: “He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
We could go on, but the point should be clear: The American Revolution was about the people being able to make the laws they needed themselves. In contemporary language, it’s about governments being able to protect the people’s rights, health, safety, and welfare. The King was preventing that, so we needed a new system of government.
Today, ceiling preemption is tyranny. It prevents the governments that are closest to the people from protecting the people’s rights, health, safety, and welfare. Relative to Congress, the California legislature is more representative of the people of California. If California wants higher vehicle fuel economy standards, Congress should have no authority to prevent that.
Image: Traffic by Martin Kleppe, Flickr Creative Commons https://flic.kr/p/hoQ7q
The courts should abolish ceiling preemption now. It has no legitimate function in a system of law where government is supposed to protect people’s health, safety, and welfare.
We already have a model without ceiling preemption
An alternative system already exists in the framework for state and federal constitutional rights. Most state courts – and the United States Supreme Court – recognize that state constitutional provisions can provide greater protections for people than the United States Constitution. Ceiling preemption is not part of the analysis when a court considers, for example, whether a state free speech provision is more protective than the federal First Amendment. This system works, and should apply for any analysis of federal/state/local laws where the purportedly preempted state or local law actually raises protections for people’s rights, health, safety, and welfare.
[C]eiling preemption is tyranny. It prevents the governments that are closest to the people from protecting the people's rights, health, safety, and welfare.
By recognizing the difference between floor preemption and ceiling preemption, courts can continue to use floor preemption to fulfill the promise of federalism by preventing state or local governments from going below the base protections for rights, health, safety, and welfare. Meanwhile, by abolishing ceiling preemption, the courts can assure that state and local governments are able to fulfill their foundational purpose of protecting the people’s rights, health, safety, and welfare.
If the courts won’t abolish ceiling preemption, then it will be up to the people to amend their state constitutions and eventually the federal constitution to do it. We’ve changed our system of law in response to tyranny before. It’s time to do it again.
The Community Environmental Legal Defense Fund partners with communities across the U.S. to advance democratic, environmental, and economic rights. Together, we are working to end ceiling preemption, empowering communities to protect themselves from unjust laws and practices harming ecosystems, local economies, and community health, safety, and welfare. Together, we are creating the future they envision. Your donations make our work possible – please give today!