Preemption Conflation: Dividing the Local from the State in Congressional Decision Making

Under the Federal Constitution’s Supremacy Clause, Congress has the power to preempt state and local laws, rendering them “null, void, invalid and inoperative.” Congress often exercises this power by adopting statutory provisions that expressly preempt certain forms of state or local regulation. The traditional answer to whether federal preemption treats state law and local (city or county) law the same has been an unequivocal yes.

This Article lifts the lid on that assumption of equal treatment to see whether Congress actually differentiates between state and local laws in the federal preemption context—and to ask whether it should do so. Perhaps the City of New Orleans should be allowed to escape federal preemption more easily than the State of Louisiana in order to encourage local experimentation, or because a single local law will have less impact on federal uniformity interests than a state law will. Or perhaps Louisiana should have more leeway than New Orleans because states are considered sovereigns in our federalist system and local governments are not, or because we have only fifty states but thousands of local governments (about 3000 counties or county equivalents, 16,500 towns, and 20,000 cities), meaning that local laws could have a greater cumulative effect on federal interests than state laws would.

I conclude that Congress distinguishes the state from the local more often than is commonly understood. Further, Congress is justified in doing so on both constitutional and policy grounds. Indeed, Congress should think even more systematically and regularly about state-local differences than it currently does when drafting preemption provisions.