Preemption Over Lower Law

Attorney Eric Torberson on Preemption

What is Preemption?

Preemption occurs either when the federal government forestalls a state law or alternatively a state law overrules a local ordinance. When a law is already covered at a higher level the lower governmental entity cannot enact inconsistent law.

What is Federal Preemption?

The Supremacy Clause, Article VI, Clause 2, of the United States Constitution conclusively determines that the Federal Laws are the supreme law of the land. Any conflicting state laws will be “without affect”.

Supremacy Clause Definition

Section 2 of Article VI authorizes the federal government to win over state power as long as it is constitutional. This clause puts everyone on notice that the supreme law of the land is the United States Constitution.

But the federal law is also limited to the constitution and statutes. The 10th Amendment to the Constitution reserves the powers not covered in the constitution to the states. The states originally were skeptical of the federal government’s powers and they wanted the framers to recognize that a distant centralized all powerful central government was unacceptable.

McCulloch v. Maryland

Why is McCulloch v. Maryland important?

This case is extremely important because the lawsuit was about Maryland attempting to tax the Federal Bank for $15,000. This would give a state a power over a part of the Federal Government and possibly allow a state to tax the bank out of existence.

In 1819 the McCulloch case took place. Maryland was represented by Maryland Attorney General Luther Martin. The Federal Bank was represented by famous orator Daniel Webster. Presiding over the supreme court was Chief Justice John Marshall who also wrote Marbury v. Madison.

Daniel Webster argued that Federal Law is supreme. This is also consistent with Alexander Hamilton’s prior assertions in 1791 while defending the Federal Bank. And if an entity can tax something, they can destroy it. Not to mention the Supremacy Clause says that national government must do what is necessary to continue executing policies and enforce the constitution.

Maryland argued unsuccessfully that nothing justified creating a national bank. Attorney General Luther Martin was a harsh critic of the existence a Federal Bank.

The Court in a unanimous decision agreed with Daniel Webster. The states cannot tax the Federal Government or a part of the U.S. Government. The important issue to take away from this is not whether a national bank was allowed to exist. But it was really about the assignment of power between the Federal Government and the States.

Chief Justice John Marshall

“The power to tax is the power to destroy.”

John Marshall

The 10th Amendment

All powers not reserved by the federal government are left to the states. These are reserved powers. This amendment is about Federalism. States have the powers not granted to the federal government as well as the states having power granted by the state constitutions. The supreme court has used the 10th amendment to empower states and to enforce the spirit of the constitution over the last several decades.

There will be a federal government and there will be states. The 10th Amendment does not specify what particular powers will be left to the states.

Home Rule

What is Home Rule?

In Texas, Home Rule cities must have a population of 5,000 or more and adopt a city charter. A Home Rule city may adopt or pass ordinances that it wants unless they conflict or are inconsistent with the state law.

The City Charter must be approved by the city council and then ratified by a city population vote. The charter is limited to the wording in the Texas Constitution that “The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

A municipality is a corporation with specific powers, such as city utilities and services, paid for by property taxes. The problem that arises are when ordinances get passed that are inconsistent with state law. This usually happens when council members vote on ordinances that are not well thought out.

Dillon’s Rule

Dillon’s Rule means that the local government may only pass laws defined and granted by the state government. 39 states in the United States. follow Dillons’s Rule.

State Home Rule State? Dillon’s Rule State?
Alabama No Yes
Alaska Yes No
Arizona Yes Yes
Arkansas Limited Yes
California Yes Yes
Colorado Yes Yes
Connecticut Yes Yes
Delaware No Yes
Florida Yes Unclear
Georgia Yes Yes
Hawaii Yes Yes
Idaho Yes Yes
Illinois Yes Yes
Indiana Limited Yes
Iowa Yes No
Kansas Limited Yes
Kentucky Limited Yes
Louisiana Yes Yes
Maine Yes Yes
Maryland Yes Yes
Massachusetts Yes No
Michigan Yes Yes
Minnesota Yes Yes
Mississippi No Yes
Missouri Yes Yes
Montana Yes No
Nebraska No Yes
Nevada Yes No
New Hampshire No Yes
New Jersey Yes No
New Mexico No No
New York Yes Yes
North Carolina Limited Yes
North Dakota Yes Yes
Ohio Yes No
Oklahoma No Yes
Oregon Yes No
Pennsylvania Yes Yes
Rhode Island Yes Yes
South Carolina Limited No
South Dakota Yes Yes
Tennessee Yes Yes
Texas Limited Yes
Utah Limited No
Vermont No Yes
Virginia No Yes 
Washington Yes Yes
West Virginia No* No
Wisconsin Limited Yes
Wyoming No Yes

Home Rule in Texas

Again, Texas allows Home Rule Status to municipalities of 5000 or more. Otherwise a town is ruled by the general laws of the state. Texas has around 350 incorporated municipalities as of 2019.

There are about 862 cities in Texas that are general law cities, non incorporated municipalities.

City Ordinance vs State Law in Texas

In January 2018 the Texas Supreme Court decided the case involving a plastic bag ban by the City of Laredo. The case was City of Laredo v Laredo Merchants Association.

The Laredo ordinance declared that the purpose of the ordinance was to reduce litter from discarded plastic bags. Prior to the ordinance taking effect the Laredo Merchants Association forestalled enforcement by suing for declaratory and injunctive relief claiming that the ordinance was preempted by The Texas Solid Waste Disposal Act.

The trial court granted the City’s motion for summary judgment and denied the Merchant’s motion. The Merchant’s appealed motion then prevailed in the court of appeals because the Act preempted the city ordinance against single use plastic bags due to plastic bags falling under the definition of container or package within the Act’s meaning.

The City filed a petition for review to the Texas Supreme Court. The court first analyzed the Texas Constitution Article XI Section 5(a) where home rule cities must not pass a provision inconsistent with the Constitution of the State.

“A statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation “must appear with unmistakeable clarity.” The mere “entry of the state into a field of legislation….does not automatically preempt that field from city regulation.” Rather, “local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.” Absent an express limitation, it the general law and local regulation can coexist peacefully without stepping on each other’s toes, both will be given effect or the latter will be invalid only to the extent of any in consistency.”

The City argued that the Ordinance had other, distinct purposes for prohibiting the use or single use bags. Those were preventing sewer blockages and flooding, promoting beautification and savings cost from cleaning up plastic bag pollution in the environment. The Court opined that the Ordinance’s solid waste management cannot avoid preemption just because it has other purposes.

The City’s argument that plastic bags were not containers as defined in the Act did not convince the Court. The Court looked at the plain meaning of container as an object that can be used to hold or transport something.

The City claims that it is authorized by state law to protect water sources, water supply, and watersheds, regulate water systems in a manner that protects the municipality interests. To adopt and enforce rules pertaining to operating a drainage utility system, maintain and regulate the cleaning sewers etc.

But the Court concludes “that clear stated intent of the Act is to control the manner of regulating the sale or use of containers or packages for solid waste management purposes. To conclude otherwise would render the statute meaningless.” The Court affirmed the court of appeals decision in favor of the The Laredo Merchants against the City of Laredo.

In the Court’s concurring opinion it mentions the problem with a “patchwork of disparate local regulations” having the “practical effect of allowing the most restrictive local ordinances to the state wide standard….the legislative branch, not the judiciary, bears the unenviable task of making complicated policy decisions that balance the benefits of uniform regulation and the myriad of burdens….”

The concurring opinion wants the legislature to uniformly fix the “assault on the ecosystem” rather than various municipalities creating confusing, inconsistent ordinances unfair to local citizens and businesses.

A home rule city may do anything authorized by its charter that is not
specifically prohibited or preempted by the Texas Constitution or state or federal law.

Check in soon to see more information on preemption of local Texas dog ordinances. For more information see Eric’s homepage at and contact him for more information.

Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.