Gavin Howe
The US government uses a shared governance system, which means that federal, state, county, and local governments all have a role to play in the legal system. Generally, if there is a conflict between state and local laws, state laws override municipal ordinances. However, in recent years, state preemption has been used more aggressively, with political polarization leading to states quashing local initiatives that conflict with or deviate from state law. This has led to litigation over hot-button political issues, such as local efforts to regulate abortion, enact gun control measures, or enforce COVID-19 restrictions.
| Characteristics | Values |
|---|---|
| Can a county refuse to follow state laws? | No, state laws override municipal ordinances. |
| Can a state refuse to follow federal laws? | No, but federal preemption allows the federal government to preempt local or state laws if they conflict with federal laws. |
| Can a county refuse to follow federal laws? | No, but counties are categorized as "sanctuary jurisdictions" if they decline detainer requests from ICE outside of capital offenses or provide public services without regard to immigration status. |
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What You'll Learn
Federal preemption
The United States Constitution establishes the government's powers and guarantees the rights of its citizens. The federal government and state governments make laws concurrently, creating a balance of power. This is known as the shared governance system.
The Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution, states that federal law generally takes precedence over state law. This is known as "preemption". When a federal law conflicts with a state or local law, the federal law supersedes the other law or laws.
However, in practice, determining whether federal law preempts state law is not always straightforward and requires extensive analysis. There are several types of preemption:
- Express preemption: This occurs when Congress explicitly declares that a statute preempts federal law, typically including a preemption clause in the statute.
- Implied preemption: This occurs when state and federal laws directly conflict with each other, or when federal law dominates a field that a state law seeks to regulate. It can also occur when a local ordinance prohibits an act permitted by the state legislature, or when a local ordinance permits an act prohibited by the state legislature.
- Conflict preemption: This occurs when there is a direct conflict between a federal law and a state or local law.
- Field preemption: This occurs when there is an extensive scope of state regulation, reflecting a state intent to preempt all local regulations in a particular area.
The Supreme Court has established requirements for preemption of state law and has cautioned that courts should err on the side of state rather than federal authority when evaluating evidence of Congressional intent. Similarly, if a statute is ambiguous, the Supreme Court has directed lower courts to consider the ambiguity in favor of state law.
In summary, while federal law generally takes precedence over state law, the preemption doctrine is complex and requires careful analysis of the specific laws and regulations involved.
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State preemption
In the United States, preemption is a legal doctrine that allows higher levels of government to restrict or prevent a lower-level government from self-regulating. While it is often thought of in the context of federal preemption of state regulation, preemption is increasingly used by states to limit cities, counties, and other lower-level municipalities from legislating across a wide range of issues. The federal and state governments make laws concurrently to create a balance of power.
The extent of a state's ability to preempt local government varies depending on several factors. These include whether the state follows Dillon's Rule, which only permits local governments to legislate where the state has expressly allowed, or whether the state grants local governments the power to govern (known as Home Rule). Most states have some form of home rule, which expands municipal power. However, only California and Ohio protect municipalities from preemption.
Preemption laws can contain punishments for enforcing preempted laws, such as withholding state funds from the municipality or exposing officials to lawsuits. In many cases, preemption is used to undermine democratic values and harm people, perpetuating harmful and oppressive systems that affect marginalised communities, including BIPOC, LGBTQ+ people, women, immigrants, and workers.
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Local government powers
The US government uses a shared governance system, which means there is a combination of federal, state, county, and local governments. State laws typically address domestic affairs, and the Tenth Amendment of the Constitution gives states the power to govern matters within their borders. Each state has its own executive, legislative, and judicial branches, as well as its own constitution, judicial system, and police power to enforce the law.
Local government law and municipal law address many day-to-day issues and cover various topics. Municipalities are often governed by a council with a mayor, or a city manager with a city council. Counties often have a municipal charter, provide local ordinances, and dictate the powers of the government. School districts may have their own rules that apply to a specific area, and there are also special districts that can function autonomously.
When there is a conflict between state and local laws, state laws usually override municipal ordinances. However, the legal doctrine of "home rule" gives local governments expanded power over their local affairs. This means that local governments can have the authority to make laws that deviate from or conflict with state law. For example, in the context of the Covid-19 pandemic, Wisconsin's Dane County enacted an ordinance making local public health orders enforceable by civil action. This was challenged in court, but the Wisconsin Supreme Court observed that state law only preempts a local ordinance when the state legislature has expressly withdrawn the power of municipalities to act, or when there is a logical conflict with state legislation.
In another example, the city of Seaford, Delaware, enacted an ordinance mandating that all fetal remains resulting from abortion or miscarriage be cremated or interred. The state attorney general challenged the local law, arguing that it conflicted with Delaware's statutory scheme for the disposal of human remains. The court agreed and held that the ordinance was preempted and invalid.
Outside groups that favor more state or local control over policymaking can also influence the balance of power between state and local governments.
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State vs local laws
The US government uses a shared governance system, which means that there is a combination of federal, state, county, and local governments. Each state has its own executive, legislative, and judicial branches, and they often have their own constitution, a judicial system, and police power to enforce the law. State laws typically address domestic affairs, and most areas of law are not explicitly given to Congress.
Local government law and municipal law address many aspects of our day-to-day lives, covering various topics and issues. Local law enforcement handles the investigation and arrest of those charged with a crime, and the local judge issues search and arrest warrants for state-level criminal offenses. Many civil court cases are filed through the local court of a jurisdiction, and specific types of courts handle certain types of cases. For example, probate court handles trust and estate issues, while family courts handle divorce and child custody cases. Counties often have a municipal charter, provide local ordinances, and dictate the powers of the government. School districts may have their own rules governing a school system, and these rules apply to that specific area.
However, the federal government can preempt local or state laws if those laws conflict with federal laws. This is known as federal preemption. In addition, state preemption allows a state government to nullify a local law that conflicts with, or deviates from, state law. This often revolves around the power given to local governments through the state constitution or state legislation.
There have been several examples of preemption conflicts between state and local governments in recent years. For instance, in 2021, the governor of Delaware challenged a local law in Seaford, Delaware, that mandated that all fetal remains resulting from an abortion or miscarriage be cremated or interred. The state argued that the ordinance conflicted with Delaware's statutory scheme for the disposal of human remains. The court agreed and held that the ordinance was preempted and invalid. In another example, in 2021, Governor Ron DeSantis signed a bill into law preempting local emergency regulations.
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State sovereignty
The concept of state sovereignty is one of the most controversial ideas in political science and international law. It is a term that is frequently misused. The right of nations to determine their own political status and exercise permanent sovereignty within the limits of their territorial jurisdictions is widely recognized. In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete self-sufficiency in the frames of a certain territory, that is, its supremacy in domestic policy and independence in foreign policy.
The Westphalian System of state sovereignty, named after the 1648 Treaty of Westphalia, recognises the right of princes "to confessionalize" the state, that is, to determine the religious affiliation of their kingdoms. Before 1900, sovereign states enjoyed absolute immunity from the judicial process, derived from the concepts of sovereignty and the Westphalian equality of states.
Legislative sovereignty, as a concept, does not entirely fit the American situation. The Constitution of the United States, the fundamental law of the federal union, did not endow the national legislature with supreme power but imposed important restrictions upon it. The Supreme Court of the United States asserted its right to declare laws unconstitutional through a procedure called judicial review. This system of constitutional sovereignty was made more complex by the fact that the authority to propose changes in the Constitution was vested not only in Congress but also in the states and in special conventions.
In the United States, the federal and state governments make laws that exist concurrently to create a balance of power. State laws typically address domestic affairs, and most areas of law are not explicitly given to Congress. The Tenth Amendment of the Constitution gives states the power to govern matters within their borders. Typically, each state has its own executive, legislative, and judicial branches. States often have a constitution or code, a judicial system, and police power to enforce the law. State laws can address a broad range of legal issues. Generally, if there is a conflict between state and local laws, state laws override municipal ordinances.
Outside groups that favour more state or local control over policymaking also weigh in on preemption conflicts between state and local governments. For example, the American Legislative Exchange Council (ALEC), founded in 1973, created the American City County Exchange (ACCE) in 2013.
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Frequently asked questions
No, a county cannot refuse to follow state laws. The Tenth Amendment of the Constitution gives states the power to govern matters within their borders. If there is a conflict between state and local laws, state laws override municipal ordinances.
If a county refuses to follow state laws, it is considered a preemption conflict. The state government can nullify a local law that conflicts with or deviates from state law.
Counties often have a municipal charter that provides local ordinances and dictates the powers of the government. However, these ordinances cannot conflict with state laws.
No, a county cannot refuse to follow federal laws. The federal government can preempt local or state laws if they conflict with federal laws.
