Gov. Greg Abbott, in his continuing attack on what he views as out-of-control local control, turned to the U.S. Constitution recently — specifically, to the 10th Amendment.
The amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Many conservatives and strict constructionists have long cited this amendment to argue against federal overreach — the strictest of these constructionists arguing that virtually anything beyond national defense, declaring war, defending borders and collecting taxes constitutes overreach.
But we wonder if Abbott might be guilty of a bit of overreach of his own. The amendment speaks of powers reserved to the states or “to the people.”
It’s an interesting discussion. Do “the people” include those who vote for local officials who enact ordinances to protect them in the absence of state laws?
So, cities pass smoking bans for bars and restaurants because the state wouldn’t. Or they approve bans on texting while driving because the state can’t — so far — bring itself to do this. In both instances, people are dying or being injured from this inaction.
And then there are city bans — which many in state government view as overreaching — on such things as fracking, which the city of Denton attempted until stopped by the state, and regulations, such as those on ride-hailing. In such cases, we suspect the concerns of Big Oil or ride-hailing companies, more than individuals, might be more of a driver for what the state believes constitutes improper local control.
And we know Big Tobacco frowns on statewide smoking bans.
Abbott and others also cite the need to respect individual rights as cause to trump local control. So the governor is proposing “a broad-based ban on regulations at the local level unless and until certain standards are met.”
This is as devoid of detail as his first attempt at proposing such a broad-based approach — at an event sponsored by the Texas Conservative Coalition Research Institute. He defended his remarks at a second event by the group about a week later. OK, but what “certain standards”?
Abbott also cites concerns of the business sector — that it be treated uniformly and consistently throughout the state.
The problem is that those businesses do business locally as well as statewide. The issue shouldn’t be solely whether they are treated uniformly, but whether they are treated unfairly. Ride-hailing ordinances, smoking bans and bans on texting while driving don’t rise to that level, in our estimation.
And those individuals who Abbott contends are injured by overreaching local ordinances can vote out of office those who violate their individual rights — unless they are outnumbered by other local individuals who are just fine with these protections. For instance, some cities in Texas say members of the LGBT community deserve protections against discrimination. And the state has been silent on that, too — though a bathroom bill that discriminates against transgender Texans might change that.
Fortunately, state Speaker Joe Straus does not, according to the Texas Tribune, think that a “blanket policy on exerting power from Austin over locals is a particularly attractive idea.”
Abbott argues that the fact that the nation calls itself the United States and not the United Municipalities buttresses his argument. But whether we are talking about states or municipalities, they are governed by “the people,” also referred to in our founding documents.
States should step in when local governments abuse their residents — just as the federal government intrudes (or used to) on state governments when they do. But, by and large, states should not step in when local governments enact local laws that protect people.
Where does that slippery slope end? State control over all facets of local development? Or maybe what businesses have to pay in fees to local governments? How cities and counties assess property taxes? Oh, wait, the Legislature is attempting to do just that at the moment, with Senate Bill 2, which would determine when tax rollback elections occur. And how “local” can we go?
The problem in Texas isn’t a patchwork of rules that businesses and individuals have to live with. It’s the Legislature’s predisposition — in the name of limited government and the primacy of business interests — that leads it to be unreasonably averse to regulation at any level.
But resenting it when local voters, through their local governments, don’t play along.
