Equity First: Conceptualizing a Normative Framework to Assess the Role of Preemption in Public Health

The united states is experiencing a health crisis: life expectancy has declined since 2015. The crisis cannot be blamed on any single epidemic; it has percolated for decades. Not all places and populations perform poorly, however. Where individuals live has a substantial effect on health, wealth, and life expectancy.

States like New York and Minnesota, for example, continue to make gains in life expectancy, while others, like Mississippi and Kentucky, lag behind. Similar divisions play out at the local level, with substantial disparities between neighborhoods mere miles apart.In the United States today, a person’s zip code can often predict their health and longevity better than their genetic code.

Many of these disparities in health and well-being are driven by the inequitable distribution of various social, economic, and political factors, commonly referred to as social determinants of health (SDOH), such as housing, education, environmental quality, and financial stability. Although the causes are varied and complex, these inequities are not the result of accident or happenstance.

Myriad federal, state, and local laws and policies have played a significant and underappreciated role in establishing and perpetuating health inequities. As localities seek to redress these entrenched inequities, some have found that, due to state preemption, their zip code also dictates their ability to pursue more equitable laws and policies through local government action.

This article aims to demonstrate how the development of a normative framework rooted in redressing health inequities can advance a more just approach to preemption, and to outline a research agenda for building the empirical evidence base necessary to catalyze and support future action. Through an “equity-first” reconceptualization of preemption, this article offers an initial road map for developing a framework to helppolicymakers, researchers, advocates, and other stakeholders understand how local governments can remain places of innovation while protecting against the invocation of “local control” to shield oppressive systems and institutions.

Preemption is a legal doctrine whereby a higher level of government may limit or even eliminate the power of a lower level of government to regulate a certain issue.In recent years, some state legislatures have increasingly used preemption to prevent local communities from enacting laws, such as raising the minimum wage, that could reduce inequities and enhance community well-being.

Health Inequities: The Role of Law and Policy

Recognizing preemption as both a cause of and a means to alleviate the inequitable distribution of SDOH requires understanding how law and policy have been central to creating these inequities, and how those same law and policy tools can promote health equity. Decades of interrelated policies have cumulatively influenced where investment and opportunity have concentrated and who has access to them.

The result is that underserved populations are more likely to live near environmental hazards, reside in substandard housing, lack access to public transportation, receive low-quality education, lack access to healthy food and beverage options, and be exposed to potentially harmful substances such as alcohol. The robust evidence connecting health inequities with racial subordination sanctioned or enforced by government actors exemplifies how laws and policies have influenced disparities in health and well-being across numerous other demographic factors such as gender, socioeconomic status, and immigration status.

At the federal level, New Deal–era housing policies, first enacted in the 1930s and enforced for decades thereafter, used redlined maps that discriminated against nonwhite neighborhoods and increased the racial wealth gap by effectively preventing home ownership by persons of color.Beginning in the 1950s, when siting and constructing public infrastructure projects, thesame segregated communities shaped by past government policies were targeted for redevelopment, leading to displacement for some and exposure to even greater environmental harms and lack of opportunity for others.

Subsequent policies such as mortgage tax incentives enacted in the 1980s further entrenched racial inequities in home ownership and wealth. Beyond the built environment, other federal laws—from labor reforms in the 1930s to the 1944 GI Bill and the social safety net— increased racial inequities because their design or implementation ensured that the benefits accrued primarily to white populations. State and local governments also have long used the law for discriminatory purposes.

This misuse includes historical policies such as explicit race-based exclusionary zoning and covenants—which, although outlawed, continue to be used to enforce spatial segregation rooted in racial discrimination—and current policies that seem neutral but produce discriminatory effects, such as restrictions on the development of multifamily housing and land use policies that concentrate heavily polluting industries in underserved communities. The cumulative and intergenerational effects of these policies on underserved populations include higher housing costs, longer commutes, limited access to opportunities such as jobs and schooling, increased risk of chronic diseases such as respiratory illness and cancer, reduced cognitive ability, higher infant mortality rates, and lower life expectancy.

In response to discriminatory state and local laws and the ongoing civil rights movement, Congress enacted preemptive federal legislation establishing nationwide antidiscrimination protections, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act. In addition to outlawing explicit discrimination, several of these laws also prohibit neutral laws that disproportionately harm protected classes.

Although some viewed the preemptive nature of these laws as undue interference with state and local authority, subsequent research demonstrated their positive effect on public health and health equity Indeed, federal civil rights legislation exemplifies the use of preemption to foster more equitable systems, institutions, and health outcomes. Similarly, preemptive state legislation that provided more expansive and robust antidiscrimination protections than federal law helped to counter discriminatory local laws. Some states have also used preemption to respond to local laws that, although not always overtly racist or discriminatory, perpetuate health and economic inequities.

Local Democracy and State Preemption

The persistence of racial and socioeconomic inequities underscores the inherent limitations of reliance on federal and even state protections. These constraints are amplified by a political environment hostile to reforms at the federal and, in many instances, state levels. Shifts in Supreme Court jurisprudence have also made it more difficult to invoke federal civil rights protections and narrowed the scope of available remedies for racial and socioeconomic inequities.

Within the void created by the inability or unwillingness of Congress, the federal judiciary, and many state legislatures to address systemic discrimination, local governments have become a locus for policy reforms with the potential to remedy past and present inequities. Local efforts to improve health and advance health equity have resulted in policy innovations focused on SDOH, such as increased minimum wage, guaranteed paid employment leave, inclusionary zoning, first-source hiring requirements, and expanded antidiscrimination protections.

As some scholars have observed, these policies frequently serve as extensions of more traditional civil rights laws by leveraging “mechanisms targeted at historically excluded groups.” Many of these local policy innovations reflect the unique challenges and experiences of individual communities and often rely on powers traditionally exercised by local governments. However, recent uses of state preemption have stymied many communities’ pursuit of healthier, more equitable futures.

These preemptive efforts appear motivated by “ideological or practical opposition to specific measures” rather than by a true need for uniform statewide regulation. Indeed, such abuses can pose an existential threat to local governments’ ability to be representative of and responsive to the needs and lived experiences of their constituents. These abuses are especially alarming because they fail to assess potential health equity implications and impede local efforts to remedy past harms, which require understanding and addressing local conditions and historical context.

Two notable examples illustrate the growing breadth of preemptive state laws and their discriminatory impact. When Birmingham, Alabama—where African Americans constitute nearly 75% of the population—enacted a minimum wage ordinance intended to address economic inequities, the state legislature immediately invalidated the ordinance and prohibited localities across the state from regulating employee wages, benefits, and work schedules. Not a single African American state legislator supported the preemptive state legislation, and many viewed it as another example of Alabama lawmakers manipulating state political and legal processes to disenfranchise African American communities. Similarly, Austin, Texas, sought to address racial and socioeconomic discrimination in rental housing by prohibiting landlords from rejecting otherwise qualified tenants based solely on their source of income (eg, federal housing assistance).

Conceptualizing an Equity-First Preemption Framework

Existing legal, political, and normative frameworks fail to account for the varying effects of preemption on health equity. The same arguments for allowing local governments to mandate fair employment policies (eg, paid leave) despite state opposition may also allow municipalities to ignore or invalidate, for example, state laws designed to increase affordable housing.

These shortcomings in existing preemption frameworks demonstrate the need for new approaches that elevate equity as a central consideration in assessing preemption. One promising avenue to address these considerations is the development of an equity-first preemption framework. Such a framework would establish evidence-based criteria for assessing whether an instance of preemption is likely to enhance or inhibit health equity and make such assessments a determinative factor in supporting or opposing a preemptive measure.

An equity-first preemption framework would recognize preemption’s double-edged sword by supporting local governments’ ability to innovate and respond to the needs and values of the people they represent while also acknowledging the need for states and the federal government to block local actions that are likely to create or perpetuate inequities. Importantly, the development of an equityfirst preemption framework is intended to foster among policymakers, researchers, advocates, and other stakeholders a more nuanced understanding of how preemption affects health and equity. The framework would not, however, supplant existing legal frameworks employed by courts when assessing preemptive state and federal laws.

Author: DEREK CARR, SABRINA ADLER, BENJAMIN D. WINIG, and JENNIFER KARAS MONTEZ

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