INTRASTATE PREEMPTION

1116 BOSTON UNIVERSITY LAW REVIEW [Vol. 87:1113legislature has given no clear guidance regarding preemption, state courts 9 askwhether local authority has nonetheless been impliedly preempted.Unfortunately, in performing this inquiry, courts too often rely on unhelpfuljudicial tests, like asking whether the local ordinance “prohibits that whichstate law permits” 10 or invades a field fully “occupied” by state law. 11 Statecourts have applied these tests inconsistently, sometimes upholding localauthority and sometimes constricting it, 12 creating a confusion that invitespreemption challenges that might never be brought if the law were clearer. Forthis reason, local government scholars have described intrastate preemption –particularly, the implied variety – as a “problematic shadow” 13 over city powerand a “dilemma for local governments” that imposes “severe constraints onlocal policy innovation and choice.” 14 Despite these complaints, however, anddespite the importance of the issue, local government scholars have paidrelatively little attention to intrastate preemption, generally addressing it onlybriefly in the context of a larger discussion of the vertical distribution of statepower. 159 In rare cases federal courts decide intrastate preemption matters when they are assertedin actions based on diversity or separate federal questions. See, e.g., S.D. Myers, Inc. v.City & County of San Francisco, 336 F.3d 1174 (9th Cir. 2003); E.B. Elliott Adver. Co. v.Metro. Dade County, 425 F.2d 1141, 1149-51 (5th Cir. 1970). In such instances, of course,a federal court purports to apply state law to the issue of intrastate preemption. Id. at 1151.10 See infra note 132 and accompanying text.11 See infra notes 198-99 and accompanying text.12 See, e.g., Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1969) (claiming thatthe subject of preemption is “complex”); Mangold Midwest Co. v. Vill. of Richfield, 143N.W.2d 813, 815-16 (Minn. 1966) (stating that the law of preemption is “not too clear”);James E. Allen, Jr. & Laurence K. Sawyer, The California City versus Preemption byImplication, 17 HASTINGS L.J. 603, 603 (1966); Michael H. Feiler, Conflict Between Stateand Local Enactments – The Doctrine of Implied Preemption, 2 URB. LAW. 398, 399 (1970)(highlighting the “confusion” associated with preemption cases).13 David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 2366 (2005).14 Daniel B. Rodriguez, Localism and Lawmaking, 32 RUTGERS L.J. 627, 639-40 (2001);see also Briffault, supra note 3, at 264; Paul S. Weiland, Federal and State Preemption ofEnvironmental Law: A Critical Analysis, 24 HARV. ENVTL. L. REV. 237, 270 (2000)(asserting that “[s]tate courts frequently invoke implied preemption to invalidate localenvironmental laws”).15 See, e.g., Barron, supra note 13, at 2365-66; Briffault, supra note 3, at 264-65;Rodriguez, supra note 14, at 639-40; Weiland, supra note 14, at 270. See generally GeorgeD. Vaubel, Toward Principles of State Restraint upon the Exercise of Municipal Power inHome Rule, 22 STETSON L. REV. 643 (1993). Two older scholarly pieces have explored indepth the issue of intrastate preemption as it applies throughout the nation. See Feiler, supranote 12; Note, Conflicts Between State Statutes and Municipal Ordinances, 72 HARV. L.REV. 737 (1959). A handful of other pieces have focused on the doctrine’s applicationwithin a specific state. See generally Allen & Sawyer, supra note 12; Robert W. Bower, Jr.,Home Rule and the Pre-emption Doctrine: The Relationship Between State and LocalGovernment in Maine, 37 ME. L. REV. 313 (1985); Gerald L. Sharp, Home Rule in Alaska: A