#Texas cities prepare for battle as sweeping law restricting local authority takes effect

Representatives of Texas cities are girding themselves for a wave of legal battles as a new “blanket preemption” law takes effect in the state.

Under the measure, which officially went into effect on Friday, vast swaths of law that cities have traditionally handled — from employment to water rights — were replaced by the state code.

But on Wednesday, a Travis county judge ruled that the law was unconstitutional — a violation of the “home rule” protections that guarantee broad latitude to the state’s cities.

Both the law itself and the ongoing court battle surrounding it have left cities uncertain what local rules will be impacted, and for how long — ambiguity that will likely have to be sorted out in court.

“It’s very confusing what happens next,” Austin council member Vanessa Fuentes told The Hill.

Legislative Republicans’ passage of House Bill 2127 on largely partisan lines last summer sparked a vicious and protracted legislative battle this summer that pitted cities against the state and workers’ organizations against business. 

That is because the law gives blanket authority to any person in Texas to sue a municipality if they feel that its laws are stricter than the state’s — as long as they can prove it harmed them.

HB2127 replaces local ordinances covered by eight broad sections of the municipal code with state law — from “business and commerce” to “labor” to “agriculture.”

Potential causes of such suits include passing new laws, restricting payday lending or pet breeding, imposing mandatory rest breaks for construction workers and mandating that employers guarantee sick time.

Conservatives argue that this still gives cities a lot of authority. “They can do zoning,” said Rod Bordelon of the Texas Public Policy Foundation (TPPF), a right-wing advocacy group that supported the bill. 

Or, he said, cities “can regulate police and public safety, how to engage in fire and police protection, fireworks displays any issues dealing with how to run their particular city and codes relating to their city.”

The law’s supporters — largely legislative Republicans and business trade groups — hold that it is essential to protect against what they see as a creeping progressive campaign to dominate state political life. They also argue that the “patchwork” of local regulations across the sprawling geography of Texas’s cities makes it impossible for small businesses to do their jobs.

But cities and workers’ rights groups argue that claim isn’t necessarily true: Because the law is so sweeping — think how many issues of municipal life touch on the category of “business and commerce” — no one actually knows how far the potential lawsuits can go. 

And they argue that the state legislature — which meets only briefly every other year, where most bills do not pass and which is largely controlled by conservative Republicans — is an inappropriate forum for addressing the everyday issues that mostly concern city governance.

Both supporters and detractors of the law told The Hill that Wednesday’s ruling had little effect on whether it would take effect on Friday — or whether suits would begin rolling in..

That’s because the legislation doesn’t technically “do” anything — it only provides that license to sue. Whether those suits are valid will get worked out in court, just as the constitutionality of the larger law will.

Though the law’s opponents have been portrayed by its supporters as being exclusively liberal, and do include many legislative Democrats, they also comprise bipartisan representatives of dozens of Texas cities. A number of small metropolitan cities filed comments supporting the lawsuit against the measure that was at the center of Wednesday’s ruling, including many that are quite conservative.

“We’re hearing from a lot of our city leaders who — regardless of what side of the aisle they’re on — they’re struggling with this preemption, because it’s really going to limit what they can do,” said Christy Baker-Smith, research director at the National League of Cities (NLC), an advocacy group that represents America’s cities and towns.

Under the measure, cities have 90 days after lawsuits challenging local ordinances are filed to amend or repeal the allegedly offending law — which means that it will likely be 2024 before any of these cases end up in court, Bordelon of TPPF said.

Once they do, it will be up to the courts to sort out the question of whether H.B. 2127 applies in a given area as the broader legal challenge to the measure works its way through the state judicial system.

Municipalities could soon be confronted with many such cases. State Rep. Dustin Burrows (R), the bill’s House sponsor and principal architect, called open season on lawsuits against them on Wednesday.

The ruling that day, Burrows wrote, “should deter no Texan from availing themselves of their rights when HB2127 becomes law on September 1, 2023.”

Fuentes of Austin said that the city was bracing itself. “We anticipate that lawsuits will start coming in,” Fuentes of Austin told The Hill, “but from my conversations with the city attorney and our legal team, “our city is ready to defend.”

As the cities mount their defenses to those cases, they will also be playing offense in the broader legal battle over the law.

The state attorney general’s office has already filed an appeal of the county judge’s Wednesday ruling, which will likely take the question of the law’s constitutionality to a local state appellate court. Fuentes said the judges there would probably be more sympathetic to the cities than to the state.

But from there the challenge will likely head to the Texas’s conservative Supreme Court, which is much more closely in line with the state’s Republican leadership.

And in that court, predicts Rod Bordelon of the Texas Public Policy Foundation (TPPF), which is a major supporter of the law, cities will lose.

They have argued — and Travis County District Court Judge Maya Guerra Gamble ruled — that the law represents an “unconstitutionally vague” takeover of municipal authority.

“Texas voters have endowed Houston and all constitutional home rule cities with sovereign power to create a brilliant patchwork of local regulations if they choose to do so,” city of Houston lawyers wrote in the suit Gamble decided in their favor.

“That is the whole point of constitutional home rule.”

The suit also argued that the measure was overruled by an even bigger principle of preemption: the ones that apply to federal law.

The U.S. Supreme Court, plaintiffs argued, “has held for federal preemption of state laws that “[t]he concern with uniformity does not justify the displacement of” local laws that serves the ends of particular state laws.”

The law’s supporters, on the other hand, argue that a plain reading of the Texas state constitution justifies it. The TPFF, for instance, has written that the Texas Supreme Court has consistently ruled that the state gets to decide “whether uniform statewide regulation or nonregulation is preferable to a patchwork of local regulations.”

And Bordelon predicts the same will happen in this case.

“What the [state] Supreme Court should find — and what they will find — is that any questions of what is applicable will be case by case and ordinance by ordinance,” Bordelon said. 

Depending how the ongoing legal battles play out, Texas’s foray into blanket preemption may only be the first of many nationwide. 

Representatives of the NLC, the advocacy group advocating urban rights, said that H.B. 2127 represents the most extreme example of a broad and largely bipartisan phenomenon: a push by states nationwide to curtail the authority of cities on issues from housing to gun control.

That is part of a broader shift in national politics as state legislatures of all stripes try to assert more authority over America’s growing and increasingly powerful cities, Baker-Smith of NLC told The Hill. 

While often portrayed as a phenomenon of red states, Baker-Smith said that preemption bills are on the rise around the country, and that more of them tend to be passed in blue states than red ones.

But when it came to the more narrow category of what she called “abusive preemption” — which she loosely defined as states overruling cities on local issues that did not concern the state as a whole — Baker-Smith said that red state legislatures were the primary offenders, overruling local control on issues ranging from LGBT rights to — in the case of Jackson, Miss. — police authority.

Even within this broader movement, however, Baker-Smith said the Texas bill was unprecedented — the nearest equivalent, a strikingly similar Florida bill that would have also been enforced by lawsuit, was vetoed by notably conservative Gov. Ron DeSantis (R) in 2022 because of the risk of “unintended and unforeseen consequences and costly litigation.”

Since states tend to copy preemption bills from each other and from advocacy groups — another reason why preemption drives have increased — Baker-Smith said she expected other states to follow Texas’ lead.

Bordelson of TPPF said that while it was early, he also expected other states to follow suit.

“There will be a lot of states and other interest groups keeping an eye on how it plays out in Texas, particularly after a lot of individual challenges,” he said. “I’m sure some states would be interested in modeling laws over what works here.”