INTRASTATE PREEMPTION

2007] INTRASTATE PREEMPTION 1161As other scholars have, I will assume that it is good to minimize parochial orexclusionary ordinances, even if they are politically popular in the jurisdictionsthat have passed them. 231 When such ordinances stand, the favored group – thecity acting parochially – essentially expropriates social benefits from the othercommunities to whom it has shifted a share of some tangible social problem.Because state legislators represent individual districts rather than the state asa whole, they can be expected to support local measures adopted by thecommunities that elect them, even if those measures are parochial andexpropriate from other communities around the state. 232 Indeed, a statelegislator could be expected to countenance parochial ordinances from his owndistrict that interfere with the very statewide legislation the legislator mightotherwise fervently support. Moreover, due to logrolling, a legislator can beexpected to influence his colleagues to join him in ignoring parochialordinances from his district in exchange for doing the same for legislators fromother districts. 233 By such a “gentlemen’s agreement,” the legislature may takeno action in the face of a proliferation of parochial local ordinances. Similarly,a particularly powerful state legislator may wield disproportionate clout – dueto seniority, prominence in the party’s hierarchy, and/or access to campaigncontributions – and use that clout to protect a city in his district from expresspreemption, even when that ordinance expropriates from other communitiesaround the state. 234 While an implied preemption regime may still allow apowerful legislator to protect his city’s parochial ordinance from preemptionby the courts if he can secure an express exemption from preemption from thelegislature, 235 such an express exemption – as an affirmative act of thelegislature – would likely receive significantly more public scrutiny than mereblockage of a bill, which can be accomplished in a number of less transparentways.230 Ala. Disposal Solutions Landfill, L.L.C. v. Lowndesboro, 837 So. 2d 292, 294 (Civ.App. Ala. 2002); N. Country Envtl. Serv., Inc. v. Town of Bethlehem, 843 A.2d 949, 952(N.H. 2004); Sawyer Envtl. Recovery Facilities, Inc. v. Hampden, 760 A.2d 257, 257 (Me.2000); DeRosso Landfill Co. v. City of Oak Creek, 547 N.W.2d 770, 770 (Wis. 1996).231 See Hills, supra note 29, at 2013 (arguing that cities should not be selfish but shouldbe “more concerned with the region as a whole”); see also Gillette, Expropriation, supranote 227, at 629.232 See Elhauge, supra note 74, at 41 (explaining how “territorial representation furthers‘pork barrel’ politics”).233 See Gillette, Expropriation, supra note 227, at 637-38.234 In some states legislative candidates may funnel money contributed to theircampaigns or to their campaign committees to the races of other candidates, which,arguably, has the effect of making certain legislators feel indebted to their financial“sponsors.” See, e.g., Dave Hogan, A Few Give a Lot in Oregon Races, OREGONIAN, Oct.31, 2006, at B1.235 It is possible that such an express exemption could violate a state constitutional banon special legislation. See infra notes 243-246 and accompanying text.