State preemption

In United States law, state preemption is the invalidation of some action by, or the wresting of power from, a portion of the state government (more often than not a municipality or other part of the state government that only exercises power within a certain geographical area such as a county) usually by the state legislature. Preemption is often used when there is a political disagreement between the state legislature and municipal governments.

The largest division between the legislature and the local governments is typically partisan; most state legislatures have been since 2010, dominated by Republicans, and city governments are typically dominated by Democrats.^[1][2]

Types of preemption

State preemption comes in many forms. A state that enacts a requirement but allows municipalities to pass more stringent laws is engaging in preemption; however, most controversial forms of state preemption are the opposite.^[3]

Some preemption laws contain punishments for enforcing preempted laws that include the withholding of state funds from the municipality or making officials open to lawsuits.^[4] In 2016, Arizona enacted SB 1487 (Rev. Stat. 41-194.01), which both withholds state funds and requires a large bond to challenge preempting statutes. SB 1487 was challenged by the city of Tucson; the state supreme court stated that the bond requirement would stop municipalities from challenging statutes, but it refused to overturn that provision.^[5]

Legal basis

In many states, municipalities only have powers specifically granted to them by state legislatures.^[6] Most states have some form of home rule, which expands municipal power, but only California and Ohio protect municipalities from preemption.^[7] This protection is shrinking, since Ohio preempted cities from raising the minimum wage^[8] and charging a fee on single-use plastic bags.^[9] The Supreme Court has struck down preemption laws that had a civil rights concern, such as in Romer v. Evans (1995).^[10]

Examples

Firearms

Most states have some preemption against local firearm regulations; in 2019, the number was 43.^[11]

In 2017, Tallahassee city officials (including Mayor Andrew Gillum) were sued under Florida's punitive preemption laws; officials were not allowed to use city funds for their defense, instead having to be defended pro bono. A state appellate court ruled that, as the law was not actively enforced, it did not violate the statute.^[12]

LGBT anti-discrimination ordinances

Several state-level preemption laws restricting or prohibiting municipal LGBT anti-discrimination ordinances were enacted in response to specific local measures.

• Colorado: Amendment 2 was placed on the ballot following a series of local ordinances, most notably Denver’s anti-discrimination ordinance adopted on December 17, 1990, and effective February 1, 1991, which prohibited discrimination on the basis of sexual orientation in employment, housing, and public accommodations. Prior protections also existed in Aspen (1977) and Boulder (restored 1989).^[13] Amendment 2 was struck down by the U.S. Supreme Court in Romer v. Evans (1996).

• Tennessee: The Equal Access to Intrastate Commerce Act followed the passage of an ordinance by the Nashville Metro Council on April 5, 2011, which added sexual orientation and gender identity protections for city contractors and lessees; the ordinance took effect immediately upon adoption.^[14] The law was upheld in Howe v. Haslam (2014) when the Tennessee Court of Appeals allowed the dismissal of a constitutional challenge to stand.

• Arkansas: The Intrastate Commerce Improvement Act followed the passage of pivotal municipal ordinances. In Fayetteville, the city council passed its nondiscrimination ordinance extending protections to sexual orientation and gender identity on August 20, 2014 (effective immediately), though it was repealed by voter referendum on December 9, 2014. In Eureka Springs, the city council originally passed Ordinance 2223 on February 9, 2015, and it was upheld by city voters in a special election on May 12, 2015. These local actions—and the legal backlash they prompted—directly influenced the state’s preemption law.^[15][16][17] The Arkansas Supreme Court upheld the law in Protect Fayetteville v. City of Fayetteville (2017; reaffirmed 2019).

• North Carolina: The Public Facilities Privacy & Security Act (HB 2) was passed in response to a February 22, 2016, Charlotte City Council ordinance expanding the city’s non-discrimination protections to cover sexual orientation and gender identity in public accommodations, which had been scheduled to take effect on April 1, 2016, but was nullified before that date by HB 2.^[18]

• Texas: The Texas Regulatory Consistency Act (HB 2127) was enacted primarily in response to local labor regulations, most notably Austin’s 2018 paid sick leave ordinance, which had been struck down in court but spurred state lawmakers to preempt a broad range of municipal rules.^[19] A Travis County district judge ruled in August 2023 that the law was unconstitutional under the Texas Constitution’s “home-rule” provisions, but the state’s appeal triggered an automatic stay. On July 18, 2025, the Texas Third Court of Appeals reversed the lower court, dismissing the case for lack of standing and improper defendant, leaving HB 2127 in effect while further appeals are possible.

State laws preempting LGBT anti-discrimination ordinances

Law	State	Private employment	Public employment	Housing	Credit	Public accommodations	Effective date	Repeal date	Overturned date
Amendment 2	Colorado						January 15, 1993		January 15, 1993 (Struck down by Romer v. Evans on May 20, 1996)
Equal Access to Intrastate Commerce Act	Tennessee						May 23, 2011
Intrastate Commerce Improvement Act	Arkansas						July 22, 2015
Public Facilities Privacy & Security Act	North Carolina						March 23, 2016	March 30, 2017 (bathroom provisions repealed) December 1, 2020 (moratorium on employment and public accommodations provisions expires)
Texas Regulatory Consistency Act	Texas						September 1, 2023

See also

• Federal preemption
• Paramountcy (Canada)