Public Health Preemption Plus: Constitutional Affronts to Public Health Innovations

Law- and policymakers increasingly seek to control lower level governments through emerging “preemption plus( )” tactics ― actions exceeding traditional boundaries or specific targets of preemption. Preemption tactics tack on direct threats, fines, loss of funds, and broad de-authorizations of powers to traditional preemption clauses or provisions. This article examines historic and modern applications of preemption, various preemption tactics employed by state and federal lawmakers, and challenges localities and states may use to fight this emerging trend. Enhanced understanding of the cohesiveness of structural- and rights-based constitutional principles may provide alternative arguments to stem the tide of preemption.