
Contents
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I. Introduction I. Introduction
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II. The New Preemption: A Brief Overview II. The New Preemption: A Brief Overview
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III. The Place of Cities in the United States Constitutional Law III. The Place of Cities in the United States Constitutional Law
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A. The Hunter doctrine and its limits A. The Hunter doctrine and its limits
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B. The federal constitution and the new preemption B. The federal constitution and the new preemption
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IV. The City and Theories of Federalism IV. The City and Theories of Federalism
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A. Two theories of federalism A. Two theories of federalism
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B. Placing cities in the theories of American federalism B. Placing cities in the theories of American federalism
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1. Cities and states compared 1. Cities and states compared
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2. Decisions including cities in federalism 2. Decisions including cities in federalism
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3. Decisions excluding cities from federalism 3. Decisions excluding cities from federalism
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C. Making a new place for cities in federal constitutional law C. Making a new place for cities in federal constitutional law
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V. Home Rule as State Constitutional Federalism V. Home Rule as State Constitutional Federalism
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VI. Conclusion VI. Conclusion
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5 The New Preemption: Placing Cities in American Federalism
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Published:August 2022
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Abstract
Recent years have witnessed heightened conflict between American cities and their states. Even as some cities are actively pursuing progressive agendas on workplace equity, environmental regulation, anti-discrimination, public health, and the treatment of immigrants, their states have veered right. These states have not only rejected progressive policies at the state level but have moved aggressively to preempt city action. This ‘new preemption’ is distinctively deregulatory, ideological, and—in some cases—punitive. The new preemption highlights the failure of American federalism to recognize cities. It also illustrates the tension within federalism theory as to whether federalism is about the protection of the specific polities that constitute the federal union or represents a broader commitment to subsidiarity. The new preemption underscores how American federalism, despite the subsidiarity rhetoric often used by the Supreme Court, is a commitment to the states per se. The new preemption also provides an opportunity to consider the role of subnational constitutions in protecting cities. American states have their own constitutions, and many have ‘home rule’ provisions that offer some protection to their cities. To the extent these constitutions create a kind of intrastate federalism, they are based on the subsidiarity model. In federal systems in which cities something other than constitutive components of the federal union constitutional recognition of cities is likely to resemble the softer subsidiarity-type protections found in American state constitutions and may be achieved through the constitutions (or equivalent rules) of the subnational units that make up the federal structure.
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