Preemption of Public Health Authority
This is the latest in a series of LSSC toolkits aimed at providing a one-stop-shop for all of the messaging, media, legal, and research resources associated with individual issue areas that are commonly preempted.
This document was last updated in March 2022.
Understanding Public Health Authority Preemption
Local governments and public health departments play a critical role in keeping the public safe. They have a deep understanding of the communities and populations they’re serving, and as such, understand how to implement public health policies that will be most effective for their residents. They can be responsive to local health issues that arise and can also move faster in adopting pilot programs - which can wind up influencing state and federal health policies.
Over the last two years, local governments have been on the frontlines of the pandemic, working around the clock to protect the public health and well-being of their constituents. Their actions – such as issuing local masking and capacity guidance – have helped slow the spread of the virus, protected the public’s health, and saved lives.
Throughout the pandemic, legislators in several states, angered by having to follow necessary public health restrictions, have worked to undermine the authority and independence of health departments and local governments. In 2021, at least 26 states pushed through laws that permanently weakened the authority of public health departments, often by shifting the power to issue critical public health and safety orders from local health experts to state politicians. At least 17 states passed laws that banned COVID-19 vaccine mandates or made it easier to get around vaccine requirements, and at least nine states passed new laws that ban or limit mask mandates.
The passage of these bills impeded actions that have been shown to slow the spread of COVID-19, such as mask mandates. It also empowered governors to block local public health plans that prioritized testing or vaccinations in communities of color, who have been disproportionately impacted by the pandemic.
The passage of these bills will change the contours of public health authority in many states for years to come. By redistributing public health decision making power around COVID to state governments, these preemption measures are setting a new and dangerous precedent, where local governments will continue to be stripped of their authority to make any public health decisions for their own communities. These laws also indirectly harm individuals and communities by further politicizing public health and sowing distrust of local health officials – who have already faced threats, intimidation, and harassment simply for trying to do their jobs.
2022 Public Health Authority Preemption Bill Examples
MO HB 1543: Would prohibit places of public accommodation from requiring vaccination against COVID-19 to access services.
AZ SB 1245: Would establish that the regulation of the sale and marketing of alternative nicotine products, tobacco products, and vapor products is a matter of statewide concern and is not subject to further regulation by city, town, or county in the state.
Media Examples
Over Half of States Have Rolled Back Public Health Powers in Pandemic. | Kaiser Health News, 9/15/21
These 8 States Passed Legislation to Limit Public Health Officials’ Authority | Route Fifty, 6/1/21
LTE: State governors, listen to your mayors who don’t want to reopen | Los Angeles Times, 4/24/20
Legal Resources
Local Power & Politics Review (Chapter 1) | Paul Diller & Lori Fresina
An Emerging Threat to Public Health Authority | Local Solutions Support Center & Change Labs Solutions
Preemption and the Public’s Health | Public Health Law Center