Bag Fee, Preemption, and Which Level of Government Wins
A home-rule city of 180,000 adopts a 10-cent fee on single-use bags, effective January 1, projected to raise about $400,000 a year for a reusable-bag subsidy program. In March the legislature passes, and the governor signs, a statute barring local regulation of auxiliary containers to ensure uniformity in interstate and intrastate commerce; it takes effect immediately. A grocery chain sues the city. The city charter grants the council all powers of local self-government; the state constitution says nothing about municipal authority, and the state has no other bag statute. The council's outside counsel asks the city attorney for a memo on which law controls, and a civics teacher who sits on the city's environmental commission wants to use the dispute as a case study. Arguments are due in three weeks.
1. Which law controls, and what must be established before that conclusion?
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Probably the state statute - but the reasoning matters more than the answer. Municipalities are creatures of the state. Under Dillon's Rule they hold only powers expressly granted, necessarily implied, or essential to declared purposes. A home-rule charter reverses the presumption for local matters, so the city starts with the bag fee inside its police power.
The state then prevails only if it validly preempts, and preemption turns on legislative intent. Express conflict is the strongest route here: the statute bars local regulation of containers, and a fee is a regulation. Field occupation is weaker, since the state has no other bag statute and no comprehensive waste scheme in the record.
The Supremacy Clause is a red herring; it governs federal-state conflicts, not state-local ones. So the memo should conclude that state law controls if the statute is read to reach fees, while flagging that some state constitutions protect home-rule powers over purely local health matters. The answer depends on the state constitution, and a memo that skips that is incomplete.
2. What is the city's best argument, and which facts would actually decide the case?
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The city argues three things. First, the fee is a local public health and solid-waste measure, not a commercial regulation, and therefore sits inside home-rule police power. Second, the statute's stated purpose is uniformity in commerce, and a 10-cent fee does not create the patchwork the legislature described - a ban would. Third, courts in many states require a clear statement before finding implied preemption of local health powers, and the statute never mentions fees.
Facts that decide it: the statutory text and its definition of auxiliary container; whether the legislature considered and rejected a fees clause; the legislative history's stated scope; the effective dates, since the ordinance preceded the statute by two months and retroactivity may matter; and whether the state runs any broader waste program. The best student exercise is to sort these into text, purpose, and structure - the three places courts look for intent.
3. How would you use this dispute to teach the structure of American federalism?
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Use it to break the two-layer habit. There are three layers - federal, state, and local - and each pair has its own rules. Federal-state conflicts run through the Supremacy Clause and the limits of enumerated and commerce powers. State-local conflicts run through Dillon's Rule, home-rule charters, and preemption doctrine.
Have students annotate the facts with which rule applies where, then transfer: a federal clean-air rule, a state fracking moratorium, a city minimum wage. Sort each by which pair is in conflict before arguing the merits. Also distinguish preemption from supremacy, and express from implied preemption, with the actual statutory text in hand.
The payoff is that students stop saying the higher level wins and start asking what kind of law is at issue, what the governing text says, and which sovereign the state constitution actually protects. That is the civic skill, not the vocabulary list.