This story was produced in partnership with the Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.
On Sept. 1, a bill with the pithy title “An Act Relating to State Preemption of and the Effect of Certain State or Federal Law on Certain Municipal and County Regulation” will take effect in Texas. The bill —signed into law by Gov. Greg Abbott in June—was given a much zippier name by its opponents: “Death Star,” because it could obliterate whole swaths of city and county laws and regulations.
“Basically, it’s the greatest transfer of power away from the public and into the hands of a few people in Austin that we’ve ever seen,” said Texas state Rep. John Bryant. “This handful of people that want to control our state do not want cities acting in their own interests. They do not want any city making policies that get in the way of their ideological and financial objectives.” Maybe Bryant and other Death Star critics are right—but we’ll know how big the transfer of power truly is only after everyone figures out what the bill actually says and does, and only if it survives the legal challenges several of Texas’ biggest cities have already filed against it.
The goal of Death Star is simple. The deeply conservative Texas Legislature wants to effectively deny cities—the state’s large Democratic-leaning cities, Houston, San Antonio, and Austin in particular—the ability to pass local laws and regulations in eight major policy areas: agriculture, business and commerce, finance, insurance, labor, natural resource law, occupational law, and property law. And it does all this in a bill that is 10 single-spaced pages long, nearly one page of which is legislative findings, not actual law. Which is where the problems begin.
Death Star does not aim to affirmatively lay out regulations at the state level; it simply attempts to thwart local regulations. Thus, the entirely of the provision that denies local governments the ability to regulate the insurance industry is just this: “Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code.” That’s it. It then repeats this language across all the various other fields, although in a few cases it adds an extra clause or two to identify specific subfields it really wants to make sure are preempted.
Problematically, as the city of Houston points out in the lawsuit it filed last month challenging Death Star as violating the Texas Constitution, these provisions lack any clarity. The new law, for example, never defines what it means for state law to “occup[y] a provision of this code” outside of the few explicit provisions noted above, making it very hard for cities to know what regulations are at risk. Houston has argued that it is unconstitutionally vague and that the Texas Constitution and state Supreme Court decisions have made this sort of “field preemption”—in which the state does not replace local law with a state alternative but simply declares whole areas ineligible for local rule making—unconstitutional under Texas law. San Antonio joined the lawsuit late last month.
The sweeping language of Death Star is likely seen more as a feature than a bug by the bill’s drafter, state Rep. Dustin Burrows, who all but brags that it is going to fall to the courts to decide what regulations are actually preempted. Importantly, the bill contains a provision that allows any individual or trade association to challenge any local regulation in court—and, if they prevail, requires the county or city to pay all the challenger’s costs and “reasonable” legal fees. Those who challenge a regulation and lose have to pay those costs only if the court finds the challenge “frivolous,” leaving the city to pay its own costs (though not those of the challenger) if it wins cases the courts see as non-frivolous. So, county and city governments assume financial risk if they attempt to defend a regulation and clarify Death Star’s reach.
Making local governments fear litigation costs is surely a goal of Death Star’s drafters. Furthermore, targeting specific regulations in the bill one by one would have been costly and would almost surely have triggered interest-group squabbling over specifics (the bill’s surprisingly detailed focus on animal regulations suggests that this was a problem even here). And by delegating enforcement to private groups like the state’s abortion-ban bill, Death Star’s litigation-based approach also farms the cost of enforcement out to private actors to sue rather than relying on the state to act—and then forces local governments to pay when they lose.
The potential for chaos is evident. The city of Houston lawsuit quotes Burrows as pointing out that in the wake of a crisis like a hurricane—when the speed and clarity of disaster response is of the essence—cities would need to petition the courts to find out what sort of emergency regulations would be permissible under the Death Star law. Burrows added that they could not expect any clarity from the Texas Legislature, which meets for only a few months every other year as it is. And assuming that Death Star survives the direct legal challenges filed against it, it will take years of litigation to hammer out its exact contours, even outside the context of emergencies. Which lays bare the pretextual nature of the drafters’ claims that the law is necessary to smooth over a “patchwork of local regulations” stymying local business.
Death Star did not arise in a vacuum. Instead, it’s perhaps the most aggressive example to date of a push by Republican-dominated state governments to thwart policymaking they dislike in their states’ generally more Democratic cities. States have historically had a significant amount of power to overrule local decision making. The U.S. Supreme Court has clearly stated that the federal Constitution provides cities no protection from states, contrary to the way it shields states from federal intervention in certain areas.
Over time, however, states saw a growing push for “home rule” laws—some, like Texas’, now enshrined in state constitutions—that undermined that presumption, and cities and counties gained more freedom to pass legislation absent explicit state laws to the contrary. The nature and strength of these rules vary from state to state and are actually fairly hard to pin down. And although states would periodically “preempt” local rules by passing overriding state laws, it was not traditionally seen as a pressing issue in state-level politics.
The past decade or so, however, has seen the rise of what Columbia Law professor Richard Briffault has dubbed “the new preemption,” in which (generally speaking) Republican state legislatures have taken increasingly aggressive aim at local regulations across a wide range of issues. The causes for this “new preemption” are likely many: the dramatic shift in state-level control by Republicans across the country starting in 2010, which gave them substantially increasing power to override more-liberal cities. The ongoing “Big Sort,” which has seen a rise in geographic clustering by ideology (with urban areas becoming more Democratic and rural ones more Republican). A Republican Party that increasingly seems to see thwarting liberal goals as a policy goal in and of itself.
What makes Death Star particularly noteworthy is not so much its aggressive attempts to preempt local rules as the sheer breadth of the effort. Tellingly, this is the second “Death Star” bill to be enacted in the past decade, but the narrow focus of the earlier bill—passed in Michigan in 2015 and targeting only some local employment regulations—makes that one look like a TIE fighter in comparison. Republican states have already been steadily eroding local autonomy all across the country, but they usually stick to one or two issues at a time (like the way Texas, among other states, curtailed cities’ ability to reduce police budgets in the wake of nationwide racial justice protests following the murder of George Floyd). If the Texas Legislature is successful here—or fails for very Texas law–specific reasons—we should expect more Republican state legislatures to start passing sweeping bills like this.
At least in Texas, however, cities have some hope of courts pushing back thanks to fairly strong home rule laws, which are rooted at least in part in the state’s historical distrust of strong government power. These home rule protections cannot hold off the state from chiseling away at local autonomy, but they may be enough to block all-encompassing bills like Death Star. And smaller efforts take more time and are politically costlier. But home rule protections vary widely across states, and cities in many places have far fewer protections than those in Texas.