Public Policy Preemption

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A guest blog entry from Jeanie Holt, NHPHA Policy Committee Co-Chair

Among the benefits NHPHA receives by being affiliated with APHA is advocacy at the federal level on behalf of public health. Like NHPHA, APHA bases advocacy on policies adopted by the Governing Council. And like NHPHA, those policies are carefully researched and based on the best evidence available.

A proposed policy that will be considered by the Governing Council is on the topic of preemption. I’m sure many of you are as unfamiliar with this concept as I was before I read this proposal. Preemption is a legislative tool whereby the federal or state government withdraws the authority of a lower level of government to act on a particular issue. Preemption can set a floor below which no state or local government is allowed to go. Minimum wage is a good example of floor preemption. Alternatively, preemption can set a ceiling and no lower entity can put in place policies that are stricter than the ceiling.

This is important for public health because so much of public health occurs at local and state levels. Once an idea gets started at a locally, it has a better chance of moving up to higher bodies of government. We see this clearly in indoor smoking bans. Many towns and cities put such bans in place before any states adopted clean indoor air laws. And we still don’t have such policies, for the most part, at the Federal level. Big tobacco companies tried for years to get national legislation passed that would have preempted the right of communities to ban indoor smoking. They knew that it would be easier to fight smoking bans (and win) in Congress than to have to work against such legislation in many towns and states. Fortunately, they lost that particular battle.

The policy being proposed to APHA’s Governing Council would authorize our public health advocates to:

·        urge federal and state legislators to avoid preempting the ability of state or local governments to act to further public health goals;

·        urge federal and state legislators to enact minimum requirements, or floor preemption, with strong public health protections;

·        urge federal and state legislators to insert savings clauses in legislation to explicitly avoid preempting lower levels of government;

·        urge federal and state legislators to consult with APHA to determine whether legislation is sufficiently favorable to public health when faced with legislation that includes preemptive language;

·        urge legislator to engage local leaders, stakeholders, and grassroots movements to gain their perspective on perspective during the legislative process;

·        urge public health and public policy education programs to educate their students about the potential negative consequences of preemption.

The NHPHA Board of Directors is considering formally endorsing this proposed policy.  Read the full proposal
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