Thursday, May 4, 2017

The City Spot Café: State Pre-emption

What you need to know about pre-emption right now, served up by the LMC Research and Information Service team. 

Definition: State law “pre-empts” local decision-making authority either by saying so in the language of the statute, or when the Legislature has “occupied the field” of that subject.

Plain language explanation: In areas of law where local authority has been pre-empted, the local authority cannot enact or enforce ordinances or regulations related to that topic, and the state is calling the shots. Any local laws that are inconsistent with state law in these areas are void.

There are two main methods of pre-emption:

1. A law may state outright that it is pre-empting local decision-making. Example: the Legislature explicitly pre-empts local authority to regulate firearms.

2. The Legislature may also “occupy the field.” Field pre-emption means the Legislature has not stated in law that local authority is pre-empted per se, but a review of the statute shows that state law covers the subject matter in every which-way, the Legislature has clearly indicated that the subject matter is solely a state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably harmful effects.

In the news: State lawmakers around the country and here in Minnesota have announced plans to restrict city authority in a variety of policy areas ranging from employment (like sick time offerings)—to public health and environmental matters like plastic bag bans and even drilling of private wells.

Pros: In some situations, the Legislature pre-empting city authority makes sense. One example is driver and vehicle licensure, where the state occupies the field. From the perspective of a city, having the state take on vehicle registration, licensing of drivers, and other related matters is a good idea. Cities would face huge costs handling that kind of paperwork across jurisdictions, and the state is better equipped to handle those tasks.

Cons: In other areas, pre-emption can tie the hands of cities who want to tailor their ordinances to the needs of their communities and instead, it can result in one-size-fits-all requirements that are imposed from the top-down. Local elected officials live in their communities and have close contact with their constituents, which means certain subjects are best left to local officials. Cities have also been known to come up with some pretty smart ideas. Policy innovation allowed to happen at the local level has resulted in statewide benefit later.

League Position: The League is in favor of ensuring continued local control over issues impacting cities, and all the positives that result from respecting Minnesota’s healthy city-state partnership.

Resource: For further information on the League’s legislative priorities, please see the 2017 City Policies and the League’s local authority advocacy toolkit.  

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