Bad, though not yet actually damaging.
Two years after a district court declared that a new state law diluting the policy-making power of blue urban areas was unconstitutional, an appeals court on Friday overruled that decision.
Texas lawmakers in 2023 passed House Bill 2127, dubbed the “Death Star” bill by opponents, which aims to overturn cities’ progressive policies and prevent them from enacting future ordinances that aren’t aligned with broad swaths of state law.
The law prevents cities and counties from creating local ordinances that overstep state laws, such as those passed in Dallas and Austin mandating water breaks for construction workers.
The bill, long sought by Gov. Greg Abbott, marks Texas Republicans’ biggest attempt to undercut the power of the state’s largest metropolitan areas, home to the most Democratic-leaning constituents and leaders.
A month after the bill passed, Houston, later joined by San Antonio and El Paso, sued the state to block the new law, arguing that it deprived elected officials of the power to enact local ordinances on a broad range of issues, such as noise regulations and mask mandates. They also were concerned that the law made it so difficult for local leaders to self-govern that it would push them to propose fewer policy changes.
“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,” late Houston Mayor Sylvester Turner said in 2023. “That is a total reversal from the way things have been in this state for more than a century.”
A Travis County judge ruled in August 2023 that the law was unconstitutional, but on Friday the Third Court of Appeals overturned that decision.
In its ruling, the appeals court said it agrees with the state largely for two reasons: the cities failed to point to “sufficient concreteness” of how the bill would hurt them, and made a weak case for how the state is to blame for their concerns.
The San Antonio city attorney’s office, however, noted that the court dismissed the case because “cities don’t have standing to challenge” the law because “at this point, there have been no challenges to any of our ordinances under this statute.”
See here for the previous update. I can understand where the Third Court is coming from in this ruling. It’s not crazy to say that in the absence of any demonstrated injury, there’s no cause to sue. On the other hand, the district court ruled that this law was unconstitutional, and call me a militant originalist but I think being unconstitutional should mean something. Allowing an unconstitutional law to stay on the books because it hasn’t caused a tangible injury yet, instead of just allowing that the very unconstitutionality of the law is itself an injury, seems misguided at best to me. See anything SCOTUS has done in the last six months for more than enough examples of this. No one is listening to me about this, so we’ll just have to see what happens next. Sooner or later this issue will be forced.