文章基本信息

标题：State Preemption: A Significant and Quiet Threat to Public Health in the United States
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作者：Jennifer L. Pomeranz ; Mark Pertschuk
期刊名称：American journal of public health
印刷版ISSN：0090-0036
出版年度：2017
卷号：107
期号：6
页码：900-902
DOI：10.2105/AJPH.2017.303756
语种：English
出版社：American Public Health Association
摘要：State and local governments traditionally protect the health and safety of their populations more strenuously than does the federal government. Preemption, when a higher level of government restricts or withdraws the authority of a lower level of government to act on a particular issue, was historically used as a point of negotiation in the legislative process. More recently, however, 3 new preemption-related issues have emerged that have direct implications for public health. First, multiple industries are working on a 50-state strategy to enact state laws preempting local regulation. Second, legislators supporting preemptive state legislation often do not support adopting meaningful state health protections and enact preemptive legislation to weaken protections or halt progress. Third, states have begun adopting enhanced punishments for localities and individual local officials for acting outside the confines of preemption. These actions have direct implications for health and cover such topics as increased minimum wages, paid family and sick leave, firearm safety, and nutrition policies. Stakeholders across public health fields and disciplines should join together in advocacy, action, research, and education to support and maintain local public health infrastructures and protections. Over the past several years, there has been a dramatic increase in the number and variety of preemptive bills and amendments proposed in states across the country. Preemption occurs when a higher level of government restricts or withdraws the authority of a lower level of government to act on a particular issue. Preemption is of particular concern in the area of public health, wherein state and local governments have historically protected the health and safety of their populations more vigorously than has the federal government. 1 Furthermore, local successes often spur state and national action, as was the case with local smoke-free and menu-labeling laws. The federal government’s authority to preempt state and local law derives from the Supremacy Clause of the US Constitution. In certain cases, the federal government enacts minimum standards and allows states and localities to build upon these protections, such as the nutrition guidelines under the National School Lunch Program. This aligns with the National Academy of Medicine recommendation that federal and state legislators “avoid framing preemptive legislation in a way that hinders public health action.” 2 States, however, more routinely enact preemptive laws without such protections. State authority to preempt local law is rooted in each state’s constitution and statutes, which establish the local governments themselves and delineate the boundaries of local control. The majority of states retain the center of control at the state legislature. Historically, preemption was used as a point of negotiation in the legislative process. Supporters of business interests would agree to health and safety protections in exchange for preemption because it is easier to negotiate and comply with 1 federal or state standard rather than contending and complying with local standards across thousands of jurisdictions. In the 1980s and 1990s, the tobacco, firearm, and alcohol industries shifted their focus from using preemption as a negotiating tool to making it their priority with respect to the establishment of state policies. 3 As a result, for example, 43 states have varying degrees of comprehensive preemption of local firearm safety laws. 4 More recently, however, 3 new preemption-related issues have emerged that have direct implications for health. First, multiple industries are working in concert on a 50-state strategy to preempt local regulation. 5 Second, legislators supporting preemptive legislation often do not support the adoption of meaningful state health protections and enact preemptive legislation to weaken protections or halt progress. Third, states have begun adopting enhanced punishments for localities and individual local officials for acting outside the confines of preemption. Here we provide 3 brief examples of preemptive legislation recently enacted by state governments, discuss potential health ramifications in these contexts, and explain a radical new method to punish municipalities for exercising their traditional authority to protect public health and safety. We conclude by highlighting the need for concerted action to counteract this trend.