Town Vs State: Who Makes The Law?

The relationship between federal, state, and local laws is complex and often a source of confusion. While the federal government has the power to override state laws through the Supremacy Clause of the US Constitution, the interplay between state and local laws is more nuanced. Cities, towns, and villages within a county often have their own local laws and governments, and the legal doctrine that grants them this expanded power is called home rule. However, the extent of this power is not absolute, and the state government can nullify a local law that conflicts with or deviates from state law, a concept known as state preemption. This raises questions about the balance of power between different levels of government and the rights of local communities to govern their own affairs.

Local government law and municipal law

The US government uses a shared governance system, which means that there is a combination of the federal government and smaller levels of government, including state, county, and local governments. Local government law and municipal law govern much of our day-to-day life, covering various topics and issues.

Municipal law is the law of cities, towns, counties, and special districts. A municipality is a city, town, or village with corporate status and local government. Generally, a council with a mayor governs municipalities, although some cities use a city manager to run the municipality with the city council. Each municipality has its own way of running, so a local attorney can help you navigate the system in your area.

Municipal charters, like constitutions, serve as the governing document for the municipality. Ordinances and bylaws are the laws issued by the municipality, and the rules pertinent to the municipality's operations and conduct of business. Ordinances govern local matters such as buildings, cemeteries, landlord/tenant, marijuana, schools, and zoning. They have the force of law if they are within the scope of authority delegated to the local governmental unit and are consistent with state or federal law.

State preemption is a legal doctrine that allows a state government to nullify a local law that conflicts with, or deviates from, state law. For example, in December 2021, the city of Seaford, Delaware, enacted an ordinance mandating that all fetal remains resulting from an abortion or miscarriage be cremated or interred. The state attorney general challenged the local law, arguing that it conflicted with Delaware's statewide statutory scheme for the disposal of human remains. The court held that the ordinance was preempted and invalid, as it conflicted with state law.

In some cases, local governments have expanded power over their local affairs under the legal doctrine of "home rule." However, in most states, home rule coexists with its more restrictive counterpart, Dillon's Rule, which provides that local governments possess only lawmaking authority that is expressly delegated to them by the state or indispensable to the purposes of their incorporation.

State preemption

The relationship between local and state laws can be complex and sometimes lead to confusion. While local governments have the power to create laws, conflicts can arise when a local law contradicts or goes against a state law. For example, a state law may allow businesses to operate until 10 pm, but a local government may pass an ordinance restricting business hours until 8 pm. In such cases, the principle of state preemption comes into play.

The application of state preemption can vary depending on the subject matter, the size of the municipalities, and the relevant statutory schemes. For example, in the city of Seaford, Delaware, an ordinance was enacted mandating that all fetal remains resulting from an abortion or miscarriage be cremated or interred. This ordinance conflicted with Delaware's statewide statutory scheme for the disposal of human remains, which requires an official record of death. In this case, the state court held that the local ordinance was preempted and invalid, as it directly conflicted with state law.

Another example of state preemption can be found in the Northern California city of Morgan Hill, where the city council enacted an ordinance requiring the theft or loss of a gun to be reported within 48 hours. However, California state law requires missing guns to be reported within 5 days, taking precedence over the local ordinance.

It is important to note that local laws can be more restrictive than state laws but cannot supersede or relax state laws. When a conflict arises, it is typically resolved by the courts, which determine whether the local law indeed conflicts with the state law. If so, the local law will be deemed invalid or unenforceable to the extent of the conflict.

Federal preemption

The concept of federal preemption is rooted in the Supremacy Clause of the US Constitution, which asserts that federal law supersedes conflicting state laws. This principle, outlined in Article VI of the Constitution, establishes that federal law takes precedence over state law in the event of a contradiction.

The application of federal preemption has been observed in various contexts, including abortion laws, gun control, and marijuana legalization. For instance, in the city of Seaford, Delaware, an ordinance mandating the cremation or interment of fetal remains from abortions or miscarriages was struck down by the court as it conflicted with the state's statutory scheme for the disposal of human remains. Similarly, in Morgan Hill, California, a local ordinance requiring the reporting of lost or stolen guns within 48 hours contradicted the state's law, which set a five-day reporting period.

While federal preemption takes precedence, the interplay between federal and state laws can be complex. For example, in the case of marijuana legalization, several states have enacted laws that contradict federal law without facing enforcement of the pre-emption doctrine. This apparent contradiction is due to states not interfering with federal authorities' ability to enforce their laws and the absence of direct state involvement in cultivation or sales.

It is worth noting that the preemption doctrine also applies within states, where state laws can supersede local ordinances. This dynamic between state and local laws is governed by the legal doctrines of "home rule" and "Dillon's Rule." Home rule grants local governments expanded authority over their affairs, while Dillon's Rule restricts local governments to law-making powers expressly delegated to them by the state or essential for their incorporation.

Home rule

The legal doctrine that gives local governments expanded power over their local affairs is called "home rule". Home rule has historically coexisted with its more restrictive counterpart, Dillon's Rule, which states that local governments only possess lawmaking authority that is either expressly delegated to them by the state or indispensable to the purposes of their incorporation. In most states, both rules coexist, with one or the other coming into play depending on the subject matter, the size of the municipalities, and the relevant statutory schemes.

When a conflict arises between local and state laws, the principle of preemption comes into play. Preemption refers to the notion that a higher level of government (in this case, the state) has the authority to override or invalidate laws enacted by a lower level of government. The state government can nullify a local law that conflicts with or deviates from state law. This is known as state preemption, which has been used more aggressively in recent years, often by red states against blue cities.

If a court determines that a local law conflicts with a state law, the local law will be deemed invalid or unenforceable to the extent of the conflict. Courts use various methods to determine conflicts, including analyzing whether the state intended to occupy the entire field of regulation on a matter. If the state law intends to cover the field exclusively, any local law attempting to regulate that matter will be preempted and invalidated.

Dillon's Rule

In the United States, the legal doctrine that gives local governments expanded power over their local affairs is called "home rule". Its more restrictive counterpart is Dillon's Rule, named for 19th-century Iowa Supreme Court Justice John Dillon. Dillon's Rule states that local governments possess only the lawmaking authority that is either expressly delegated to them by the state or indispensable to the purposes of their incorporation. In other words, local governments may exercise only the powers that the state specifically grants them.

Forty of the 50 states in the US apply some form of Dillon's Rule. The National League of Cities identifies 31 Dillon's Rule states, 10 home rule states, 8 states that apply Dillon's Rule to certain municipalities, and one state (Florida) that applies home rule to everything except taxation. Each state defines for itself what powers it will grant to local governments. In most states, home rule and Dillon's Rule coexist, with one or the other coming into play depending on the subject matter, the size of the municipalities, and the relevant statutory schemes.

For example, in December 2021, the city of Seaford, Delaware, enacted an ordinance mandating that all fetal remains resulting from an abortion or miscarriage be cremated or interred. However, a state court struck down the ordinance, arguing that it conflicted with Delaware's statewide statutory scheme for the disposal of human remains. The court held that "a junior sovereign cannot enact a law that conflicts directly with a law established by the senior sovereign".

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