Note: Reconsidering Home Rule and City-State Preemption in Abandoned Fields of Law

By Franklin R. Guenthner. Full text here.

When state governments overrule local ordinances, but do not replace those local laws with affirmative statewide policies, does that constitute a valid act of city-state preemption? From North Carolina, where the passage of the now infamous (and recently repealed) HB2 overruled Charlotte’s LGBT civil protections; to Arizona, where a recent state law can subject any new ordinance to review by the Attorney General and a withdrawal of state funding, there is a growing practice of states blocking city ordinances through perfunctory preemptive statutes without putting in place a new statute that addresses the concern of the original municipal law. As the importance of cities in modern American life continues to expand, local governments may be left wondering whether anyone can or will step in to fill the legislative void on key issues facing their citizens.

This Note defines this state practice as abandoning the field, and argues that, in many states, it violates some of the most fundamental principles of state constitutional law, most notably that of home-rule immunity. It looks at cases in North Carolina, Minnesota, and Arizona to determine the extent to which cities can push back against these preemptive practices based on those principles. Finally, it proposes a rebuttable presumption standard by which courts can determine that certain state preemptive laws do not serve a legitimate state interest, and that local law should instead control. In this way, the Note emphasizes the role of courts in defining the boundary between statewide interests and local concern, and offers a balanced approach to the practice of preemption that helps it serve its intended purpose.