In many communities, local regulations are butting up against state law, creating tensions and even full-blown legal battles between state capitals and city halls.

Fort Stockton, Texas, is one example. In the city, it is illegal for businesses to use plastic bags. It was a local solution to a local problem, and a decision Republican Councilman Darren Hodges said city officials had the “God-given right” to make, according to The New York Times.

However, the authority of Fort Stockton is being questioned by the state. The Republican Governor, Greg Abbott, says the anti-plastic bag ordinance isn’t business-friendly, and undermines the “Texas model,” The New York Times reports. Abbott says several cities are threatening Texas’ reputation with a patchwork of ill-conceived regulations.

“The truth is, Texas is being California-ized, and you may not even be noticing it,” Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, before taking office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”

So who gets to make the call? Writing in The Huffington Post, David Morris, director of The Public Good Initiative, says the bag battle in Texas is representative of a national model. “A clear pattern has emerged,” he writes. “Cities legislatively address a local problem. Big business complains. State legislatures clap down, and, as Republicans become more conservative and gain control of more state governments, the pace and intensity of those clamp downs have increased.”

Nineteen states currently preempt local minimum wage laws, Morris writes. Half of these laws were enacted in the past five years. Nineteen states restrict or prevent cities from building municipally owned broadband networks (although this could be changing). At least five states have preempted local regulation of e-cigarettes.

Sometimes, courts intercede on behalf of municipalities, but not often. Such was the case in Pennsylvania, when Pittsburgh became one of the first cities to ban fracking within its limits, according to National Public Radio. The Pennsylvania legislature stripped the city of its right to enact such a ban, but the state supreme court reinstated the city’s right.

However, such decisions are rare. Morris says it’s unlikely that judiciaries will prove to be allies when cities attempt to exercise their authority in the face of state opposition. Historically, U.S. courts have given states wide latitude in limiting or even eliminating local authority. In 1907, the U.S. Supreme Court upheld the power of Pennsylvania to consolidate Allegheny, Pa., into Pittsburgh, against the wishes of residents and local authorities.

One of the main arguments for state authority over municipalities, and the one Abbott makes, is the need for uniformity. A hodgepodge of local ordinances burden businesses, and can create stagnant state economies, he says. 

But Morris argues this is a weak justification. “In any event consistency is a poor excuse for undermining a fundamental principle of democracy,” he writes. “Indeed, one of the compelling reasons for allowing local control is the resulting diversity of practice and the innovation and learning experiences that result.”


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