The End of Local Laws? War on Cities Intensifies in Texas

Gov. Greg Abbott, an outspoken critic of federal overreach, recently suggested that his state should adopt a "ban across the board" on local regulations.
by | April 5, 2017
Texas Gov. Greg Abbott: "I saw firsthand how my own private property rights were being mowed down by these regulations." (AP/Stephen Spillman)

As attorney general of Texas, Greg Abbott made a name for himself by fighting the federal government and suing the Obama administration 31 times. As governor, Abbott has found a new enemy -- local governments -- and, in recent days, he’s raised the stakes in that war.

Texas has a reputation for blocking local laws that contradict its hands-off approach to regulation. In 2014, for example, the oil-friendly state sued a town that voted to ban fracking and then later passed a law preventing other cities from doing the same.

“For us to be able to continue our legacy of economic freedom, it was necessary that we begin to speak up and to propose laws to limit the ability of cities to California-ize the great state of Texas,” said Abbott at an event with the Texas Conservative Coalition Research Institute last month.

As state lawmakers gather for their biennial session this spring, they're weighing whether to rein in localities that ban plastic grocery bags, extend civil rights protections to LGBTQ residents, discourage cooperation with federal immigration authorities, impose driver screening requirements for ride-sharing companies and regulate the chopping down of trees.

Those types of clashes, particularly between liberal cities and conservative states, are increasingly common throughout the country, in part because Republicans have a historically high level of control over state governments.

But in Texas, Abbott now suggests that instead of spending time and money battling these issues individually, the state should issue a “ban across the board” on municipal regulations.

“One strategy would be for the state of Texas to take a ‘rifle shot after rifle shot after rifle shot’ approach to try to override all these local regulations,” Abbott explained to the conservative audience last month. “I think it would be far simpler, and frankly easier for those of you who have to run your lives and your businesses on a daily basis, if the state of Texas adopted an overriding policy to create certain standards that must be met.”

The governor has not laid out many more details on how that approach would work, and his press office referred back to his remarks.

But one possibility, says Bennett Sandlin, executive director of the Texas Municipal League, is that the state could strip all 352 home-rule cities, which are free to enact regulations as long as they don’t expressly conflict with state law, of their home-rule powers. They would then be treated as general-rule cities, which are usually small and can regulate only areas the state specifically gives them permission to oversee.

Thanks to U.S. Supreme Court rulings in the early 1900s, states have broad authority to decide what powers to grant to municipalities. Texas is one of 39 states to follow the so-called "Dillon's Rule" for at least some of its local governments. The rule makes clear that municipalities are subordinate to state government.

The Texas constitution also specifies that even home-rule cities can't pass ordinances that contradict state law. In other words, cities wouldn't have much recourse if Texas decided to preempt their powers.

One reason states give cities home-rule authority, though, is so the state legislature's agenda isn't clogged with local-interest legislation. That's a particular concern for states like Texas, where the legislature only meets for a few months every other year.

Sandlin, from the municipal league, has naturally been an outspoken opponent of Abbott’s attacks on municipalities. He says this hostility toward cities and local control didn’t exist at the Texas Capitol before Abbott became governor.

“It’s only been since 2015 that we’ve seen this new tactic, where local control is no longer a good thing, it’s actually an evil thing," says Sandlin. "The new good thing is now liberty from local regulations."

While Abbott decries the “patchwork quilt” of regulations that local ordinances present to businesses, Sandlin says it makes sense sometimes. In fact, the Texas Municipal League has changed its Twitter avatar to a photo of a patchwork quilt.

Sandlin says plastic bag bans are a good example of why case-by-case regulations are necessary. Fewer than 10 Texas municipalities have banned single-use plastic bags, but they’ve done so for different reasons. Ranchers in the conservative town of Fort Stockton complained that the windswept bags interfered with feeding their cattle. In South Padre Island, the bags killed marine wildlife and turned off tourists who didn't want to go to a trash-littered beach.

Under Abbott’s one-size-fits-all approach, "what would you say to the rancher in Fort Stockton or the hotelier in South Padre Island? You just wouldn’t have anything good to say to them. It would be ridiculous," says Sandlin.

The governor’s objection to local ordinances is personal and philosophical -- and to some, contradictory.

Abbott was upset when the city of Austin, where he lives, wouldn't let him cut down a pecan tree in his yard without planting several additional trees. Austin is one of 50 Texas cities that regulates the chopping down of old-growth trees.

“I saw firsthand how my own private property rights were being mowed down by these regulations,” Abbott said at the event last month.

To many of his critics, Abbott's crushing resistance to localities' rights contradicts his staunch defense of states' rights. If he's so against the federal government intruding in states, one could logically assume he would be against states intruding in localities.

But Abbott, who once served on the Texas Supreme Court, argues that states have a unique role in American government.

“The controlling document that we live under in this country is not some city code. It’s not county rules and regulations. It’s not even state law. The predominant doctrine that creates the architecture that we are governed by and live under is the United States Constitution,” he said, and he noted that the Tenth Amendment delegates power not granted to the federal government to the states and to the people -- but not to municipalities.

“I sued the Obama administration 31 times because I thought they were violating the U.S. Constitution. It wasn’t because of local control,” he said.

Sandlin, however, dismisses the governor’s constitutional argument as “a legal truism that doesn’t amount to much” because it doesn’t address how the state government should best govern a place as diverse as Texas.

“Texans don’t want to be told they have to conform to one way of thinking or one way of living --whether it comes from Washington or from the governor’s office in Austin,” Sandlin wrote in a recent op-ed. "If Texans feel warm and comfortable under a patchwork quilt, those who seek to do business here -- and our governor -- should recognize and respect that.”