I’ve Got a Bad Feeling About This: The Resistance Against 'Death Star' State Preemption

Abstract

Within the past decade, many state legislatures have begun to further a national trend of passing laws to limit municipal authority, known as state preemption. Many of these laws are in direct response to municipal ordinances which fall in contrast with attitudes of the states. While preemption has the potential to be useful in some circumstances, in practice it has recently become larger and more over-encompassing, and symbolizes a clear intent by states to erode the power of municipalities to self-govern.

Of all the states, the State of Texas currently stands at the forefront of the legal landscape of state preemption. In May 2023, the Texas Legislature passed the Texas Regulatory Consistency Act, H.B. 2127, which preempted municipalities completely from drafting ordinances in eight state codes, as well as listing a number of specific preemptions. Because of its potential to be overly restrictive of municipal autonomy, many municipal advocates have referred to the law as the “Death Star” bill. While this bill will not likely change much of how general-law municipalities operate, the main targets of the bill, home-rule municipalities, may have their operations significantly affected. Although a District Court judge found H.B. 2127 unconstitutional in August 2023 due to issues in vague statutory construction, its enforcement and potential consequences are still largely unknown at the time.

This Comment seeks to address issues raised in response to this recent trend by reviewing Texas’ preemption laws in light of the current direction of state preemption. The Comment offers solutions for state governments in the form of judicial standards, legislation, and adequate municipal representation at the state level. Additionally, it offers practical suggestions for municipalities in drafting ordinances in light of over-encompassing preemption laws, as well as ways to challenge these laws in court.

Keywords: State Preemption, H.B. 2127, Texas Regulatory Consistency Act, Death Star Preemption