Plastic-Bag Ordinance and State Preemption
A city council in a home-rule state passes an ordinance banning single-use plastic bags at grocery stores and imposing a $0.10 fee on paper bags, effective January 1. The council vote is 6–3. Three months later, the state legislature passes a law declaring that 'the regulation of containers and packaging is a matter of statewide concern' and prohibiting local governments from adopting container regulations. The governor signs the law, which takes effect immediately. A grocery association sues the city, arguing the city ordinance is void. The city attorney argues that the city's home-rule charter gives it broad police power over health and waste. The state constitution says home-rule cities may 'exercise all powers not denied by law,' but also allows the legislature to preempt local laws on matters of 'statewide concern.' The case is headed to trial court.
1. Which government's law should prevail, and what reasoning would you expect the court to use?
Read the worked answer
The state law likely prevails, but the court's reasoning matters more than the label. Local governments are created by state law and have only the authority the state constitution or statutes give them. Home rule reverses the usual presumption for some cities, but it is not absolute. The key questions are whether the state constitution permits preemption on this subject, whether the legislature reasonably identified container regulation as a matter of statewide concern, and whether the statute is constitutional. The phrase 'not denied by law' suggests that a valid state law can deny local power. The city can argue that its ordinance is a local health and waste measure with no extraterritorial effect, and that the state law is special legislation targeting one city. But a court will likely defer to the legislature's stated concern if the law is general and rational. Federal supremacy is not the issue here; this is a state-local hierarchy question.
2. How would you explain the difference between federal preemption and state preemption to students using this case?
Read the worked answer
Use a ladder of authority. The Supremacy Clause places federal law above conflicting state law when Congress acts within its constitutional powers; that is federal preemption. State preemption is different: within a state, the state constitution and legislature set the rules for local governments, which are not sovereign in the same way. In this case, no federal statute is at issue. The city is not claiming that federal law protects its ordinance; it is claiming that the state constitution's home-rule provision protects local authority. Students should see that 'preemption' is a relationship, not a single rule. A useful comparison is a state law forbidding local minimum-wage ordinances versus a federal law regulating workplace safety. The first is state preemption; the second may be federal preemption. The case also shows that the outcome depends on constitutional text and judicial interpretation, not just on which government is closer to the people.