First out of the gate. I’m sure they will have company.
Houston city attorneys on Monday filed a lawsuit against a new state law that blocks an array of local regulations, marking the first legal challenge to the sweeping crackdown on cities and counties.
The lawsuit, filed in Travis County District Court, seeks to have the new law ruled unconstitutional and unenforceable. The law, known as HB 2127 and dubbed the “Death Star Bill” by critics, has put a slew of local regulations in doubt, subject to potential lawsuits by private parties.
“Houston, like all cities, needs to know with certainty what laws it may enforce, and its residents and businesses need to know with certainty what laws to obey,” the lawsuit says.
The law limits local regulations to being no more restrictive than what’s “expressly authorized” in state codes covering business, labor, property and other wide-ranging areas. It was signed into law last month by Gov. Greg Abbott after sailing through both chambers of the Republican-led Legislature, which has long pushed to rein in city and county regulations.
The latest offensive takes a broader approach than past legislation, which had stuck to banning single-issue measures such as city regulations on oil and gas drilling. Lawmakers have also moved to bar local governments from taking “adverse action” against a company based on its support for a religious organization, in response to San Antonio City Council’s move in 2019 to deny Chick-fil-A’s request to open a restaurant at the city’s airport.
The new law has been panned by local officials in several Texas cities, who argue it goes too far to wipe out local rules and could scrape commonplace regulations governing unlicensed boarding homes and hazardous waste disposal, among other things.
“It’s no secret that for years the Legislature has been eating away at local government and governance, but House Bill 2127 has gone way out of bounds. It is extreme, and I don’t think that is an overstatement,” Mayor Sylvester Turner said of the city’s lawsuit. “Under House Bill 2127, preemption is given a new meaning and one that effectively repeals” a city’s self-governance, as described in the Texas Constitution.
The bill is scheduled to take effect Sept. 1, though Houston officials are seeking a temporary court ruling that would halt the new law as the court case plays out.
See here for some background. The city also has the mandatory arbitration law in its sights, and I had this bill on the list of certain targets. I did think we wouldn’t see legal action until September, but it’s easy enough to understand why this happened now. The Trib adds some details.
In Houston, the law would overturn local ordinances regulating tow-truck companies, outdoor music festivals, noise regulations and boarding homes, Houston Mayor Sylvester Turner said at a Monday press conference. But the full extent of what local laws would become illegal remains unclear.
“What this means is that cities like the city of Houston cannot pass ordinances in these areas unless the state of Texas explicitly gives us permission to do so,” Turner said. “That is a total reversal from the way things have been in this state for more than a century.”
In the lawsuit filed Monday in Travis County court, Houston leaders argue that the new law violates the state constitution and significantly weakens cities’ authority to self-govern. The law conflicts with a portion of the constitution that allows cities to enact their own laws, they argue. In order for the law to take effect, voters would have to approve a constitutional amendment, they said.
The state constitution already forbids cities from enacting laws “inconsistent with” the constitution or laws passed by state lawmakers. Houston officials see an opening there to strike down the law, arguing a local ordinance can’t conflict with state law if there isn’t a specific state law the ordinance would directly conflict with, the lawsuit says.
The new law is the most wide-ranging effort to-date by Texas Republicans to undercut the leaders of the state’s large urban areas. In recent years, lawmakers have passed laws to prevent cities and counties from requiring landlords to rent to tenants with federal housing vouchers or regulating fracking within their limits. If cities and counties want to raise property taxes a certain amount each year or rein in their police budgets, they have to get voter approval under legislation approved in the past few years. Local governments can no longer enact mask mandates or require schools or businesses to close if there’s a COVID-19 outbreak under a new law passed this year.
The first link above is to the lawsuit. I’ve heard the constitutional arguments and I have some hope there, but this will take time to sort out. One hopes Houston will succeed in getting a temporary restraining order in place in the interim. It would be pretty chaotic without one, that’s for sure. Houston Landing also adds on.
Critics have zeroed in on the fact the law would block ordinances in Dallas and Austin that require water breaks for construction workers. Houston does not have such a measure.
Houston officials, however, said last week that ordinances regulating everything from tow truck companies to outdoor music festivals could be affected by the new law.
In its lawsuit, the city identified a new city measure it believes is under threat: the “pay-or-play” program that requires city contractors to provide their employees with health care or pay into a city fund for the uninsured. The city says the fund provides services for 30,000 Houstonians.
The lawsuit states that the health care program would “likely be halted as preempted” if the law goes into effect, and “tens of thousands of Houstonians would suffer as the result.”
It could be months or years, however, before the full effect of the law is known, city and county officials said last week, in part because of the vague language of the statute and because the law will rely on private lawsuits for enforcement.
The lawsuit alleges the preemption law represents an end-run around the state Constitution, which grants powers to cities like Houston that only can be taken away if the Legislature does so with “unmistakable clarity.” The “death star” law paints with far too broad of a brush, Houston’s lawyers say, and must be stricken down.
“In this case, what the Texas Legislature has done is that it has passed House Bill 2127 as a state law, but it has the direct impact of repealing portions of the Texas Constitution. That is a non-starter,” Turner said at a Monday press conference.
In filing suit against the law, Houston appears to be first out of the gate on an issue that has attracted condemnation from big cities across Texas. A city spokesperson said she was not aware of any other legal challenges thus far.
Two San Antonio City council members last week called for that city to file a lawsuit. Harris County Attorney Christian Menefee has said that he would support challenges to the law.
I fully expect that other cities will follow suit; those actions will likely end up being consolidated, which will add to the timeline needed to resolve matters. The city’s press release is here, and Houston Public Media has more.