INTRASTATE PREEMPTION

1114 BOSTON UNIVERSITY LAW REVIEW [Vol. 87:1113effect on the state and national political processes. It argues that state courts,drawing on their institutional advantages, should take a new approach tointrastate preemption that facilitates good-faith policy experimentation bycities, while discouraging parochial and exclusionary municipal action.INTRODUCTIONJustice Brandeis famously described the states as “laboratories” ofdemocracy, and that memorable phrase has since been invoked repeatedly toextol public policy innovation as one of the primary virtues of our federalistsystem. 1 Much less praise has been showered upon another set of importantpolicy “laboratories”: cities, counties, and other forms of local government.Now secure in their exercise of “home rule” authority – that is, the delegatedpower from state to city 2 to engage in substantive policymaking – and oftenfrustrated with perceived legislative stagnancy at the federal and state level,cities have enacted new and innovative policies in a wide variety of fields. Inthe sheer number of laboratories offered, local governments dwarf the mere 50states: there are 15,000 municipalities and 3,000 counties, 3 as well as 35,000special-purpose districts. 4One particular legal doctrine, however, often frustrates cities’ ability toinnovate: preemption. City ordinances, like state laws, are subject to federalpreemption, but the primary threat to local innovation is the charge ofintrastate preemption: that a city’s authority in a particular area has beensupplanted by state law. Business and industry groups are the litigants whomost commonly assert preemption to block local policies that may imposeadditional costs and regulatory burdens. For instance, when cities bannedsmoking in bars and restaurants, restaurateurs, bar owners, and tobaccointerests sued, alleging that the cities’ ordinances were preempted by the moresmoking-friendly state laws that preceded the ordinances. 5 Likewise, whencities passed gay rights legislation – such as ordinances establishing sexualorientation as a protected class for the purposes of job discrimination (whenstate law did not so provide) – businesses sued, again alleging that the cities’1 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).2 Borrowing somewhat from Professor Gerald Frug, I shall, as a matter of convenience,frequently use the word “city” throughout this paper as an under-inclusive reference to anyform of local government. Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV.1057, 1061-62 (1980).3 Richard Briffault, Home Rule for the Twenty-First Century, 36 URB. LAW. 253, 259(2004).4 So-called “special-purpose districts” vary widely in their scopes and authority; somehave substantive policymaking authority whereas others have narrower missions. RICHARDBRIFFAULT & LAURIE REYNOLDS, STATE AND LOCAL GOVERNMENT LAW 11 (6th ed. 2004).There are also approximately 13,500 school districts, which is the most common form ofspecial-purpose district in the United States. Id.5 See infra note 135 and accompanying text.