Partisan Preemption: the Strategic use of Federal Preemption Legislation

Federal preemption by both parties has risen dramatically since the 1960s. Scholars note that Democrats and Republicans routinely employ preemption to advance partisan political goals, but we know very little about how each party uses this tool of federal power. Are policymakers from both parties employing preemption in similar ways, or do strategic partisan differences exist? Using an original dataset, we show that Democrats and Republicans systematically vary in their use of preemption. Democrats put forward preemption legislation that maximizes regulation by mandating a floor of protection across the states, particularly for policies that promote consumer protection and expand civil rights. In contrast, Republicans enact preemptions that cap regulation by utilizing ceilings that curtail the states’ ability to regulate, particularly for business and commerce policy. Ultimately, both parties have enhanced federal power and limited state authority, but they do so in dramatically different ways and for vastly different political goals.