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 administrative agencies)? Second, if the judiciary is to police the state-local division, should it use scrutiny-based tailoring analysis, a mode of judicial inquiry that has been subject to withering academic criticism from all sides?


On the first point, it is worth noting that cities are not helpless actors in the legislative process. Cities hire lobbyists, are represented by a state umbrella organization (often called the “league of cities”) that also lobbies the legislature and executive officials, and influence legislation through endorsements of state legislative candidates by local office-holders and taking public stances on proposed legislation. Nonetheless, after all of that, they still often end up on the “losing” side of preemption, particularly when there are well-heeled interest and influential interest groups on the other side or when partisan gerrymandering appears to have tilted the legislature’s leanings away from urban interests.


How and why might judges be better at protecting cities than legislatures? In thirty-nine states, judges of the state’s highest court are elected or face a retention election. These elections are sometimes partisan; even when nominally nonpartisan, many of these elections become functionally partisan, with the major parties endorsing particular candidates. State supreme court — and even appellate court — races can also feature tens of millions of dollars in fundraising by the candidates and “independent expenditures” by interest groups with a stake in the court’s future decisions. The same forces, therefore, that warp the legislative process might very well influence how state judiciaries function.


On the other hand, the judiciaries in most states are different from legislatures in one key respect. They are usually elected statewide, rather than by district. Even in the small number of states that elect high court judges by district, those districts are much larger than legislative districts. It is less likely, therefore, that the same urban-rural divide that has driven so much of the preemption politics in state legislatures recently would apply ipso facto to state courts. In addition, judges have to worry about precedent. Legislatures can make whatever ad hoc determinations they like about the state-local divide, but the judicial role requires judges to pay at least lip service to the notion of stare decisis. This arguably makes it less likely that judges will reach “results-driven” decisions on preemption even if they are influenced by campaign donations and other re-election pressures. All of these considerations are the type that states should think through before deciding whether to empower judges to have the final say on home rule’s limits.


With respect to the jurisprudential methodology judges would use to police the state-local divide under HR21C, there are reasons to ask whether the tiered scrutiny-tailoring framework is best in each state. This method of judicial decision-making appears nowhere in the federal Constitution textually, but has become the dominant means of deciding equal protection (and some other) cases in the last several decades. Critics, however, have lambasted tiered scrutiny review for its rigidity: some consider it too lax in upholding almost anything that falls under rational basis review; others consider it too harsh in striking down almost anything that falls under strict scrutiny review. Commentators have suggested reasonableness or proportionality review as viable alternatives.


Within the tradition of state constitutional law, state courts have used methodologies other than tier-based scrutiny review for deciding key rights and other questions, in no small part because state constitutions are independent documents, and because terms like “strict scrutiny” and “narrow tailoring” do not appear in their texts. Before locking this particular, idiosyncratic, and much-criticized juridical method into the text of a state constitution, states should be careful that it is what they indeed wish for. There may be other tests and methodological approaches that state courts could use to protect local autonomy, some of which draw more directly on their own, unique constitutional traditions.