Is Enhanced Judicial Review the Correct Antidote to Excessive State Preemption?

Updated: Jan 5

This post is based on a presentation for the 2021 North Carolina Law Review Symposium "Home Rule in the 21st Century"

The NLC HR21C proposal is astoundingly comprehensive, covering more aspects of home rule than its predecessors. As constitutional language alone, if adopted in toto, it would likely be the wordiest constitutional home rule provision on home rule among the states. But the proposal need not be an all-or-nothing proposition. Rather, states can and should consider adopting a la carte the parts that they want as well as tailoring parts of the proposal to mesh with their states’ existing constitutional structures. In my forthcoming paper for the North Carolina Law Review symposium on HR21C, I examine critically an aspect of the proposal that states should analyze carefully: its empowerment of the judiciary to strike down preemption.

Two sections of HR21C explicitly authorize courts to strike down preemptive state action. Presumably, such preemption would take the form of a statute passed by the legislature, but as I have pointed out in another paper, preemptive legislation can also be passed by voter initiative in the approximately twenty states that have direct legislative democracy. State administrative rules can also preempt localities, in addition to gubernatorial executive orders; indeed, executive-order preemption has become quite common during the Covid-19 pandemic, at least in certain states.

HR21C empowers judges to overturn preemption of whatever form in two key instances: 1) in cases of run-of-the-mill regulatory preemption, if the state displacement of local power is not “necessary to serve a substantial state interest” nor is “narrowly tailored to that interest”; and 2) in cases of preemption of “local democratic self-government” — i.e., matters that affect the “structure and organization” of local government — if the preemption does not “advance an overriding state concern” in a way that is “narrowly tailored to that interest.” In doing so, HR21C amounts to the largest invitation to the state judiciary to police the state-local boundary since the original “imperio” home rule provisions of the late nineteenth and early twentieth centuries, which live on primarily in California and Colorado.

HR21C’s empowerment of the judiciary raises two key questions: First, if we agree that preemption has been used excessively, why would we expect the judiciary to be any better at policing it than the legislature (or the other actors implicated by the forms of preemption mentioned above: voters, governors, and administr