University of Chicago Legal Forum


In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

This Comment considers whether local governments are legally protected from state-sanctioned punitive financial penalties. In doing so, it distinguishes financial penalties from permissible forms of state preemption and analyzes existing judicial decisions that consider financial penalty arguments. After discussing the existing doctrine, this Comment develops a conceptual framework to suggest that certain punitive preemption tools are not legal. Ultimately, this Comment maintains that coercive financial mechanisms attached to preempting legislation are unconstitutionally coercive as they functionally force local governments to relinquish core elements of their sovereignty.

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