Texas cities could use a declaration of independence from the state

Liberty is a beautiful thing. This week, we celebrate America’s independence with fireworks, festivals and parades packed with national symbols: our colors, our flag, our military veterans in full dress uniform.

Beneath these symbols are sacred ideals. Among the most precious is the principle of individual liberty, the idea that government is created by and for the people.

At our nation’s heart is not a building in Washington or a chamber in Austin, but We the People.

As such, it’s been understood for most of Texas’ history that government closest to the people governs best, so long as it adheres to basic laws and rights enshrined in state and national constitutions. The concept is known as local control. For more than a century, the power of larger cities to govern as locals see fit has been codified in state law as “home-rule.”

Now that form of independence is under attack by foes you’d least suspect: Gov. Greg Abbott and other far-right members of a Republican Party that long has championed local control, small government and protection from government overreach.

When the Texas Legislature meets later this month for another expensive, unnecessary 30day special session, at least half of the items on Abbott’s agenda deal with issues usually handled by cities, counties and school districts, from property tax collection to tree ordinances.

“The list of proposed topics for a special session represents an all-out assault on the ability of Texas voters to decide what’s best for their communities and their neighborhoods,” Texas Municipal League Executive Director Bennett Sandlin said in a statement in June.

He said “no one has ever proposed such sweeping restrictions” on local voters’ ability to shape their communities and that “stifling their voices through an all-powerful, overreaching state government is a recipe for disaster.”

It’s a troubling trend that has been building for a while. Through the years, lawmakers have taken aim at local governments’ ability to regulate everything from plastic grocery bags to fracking. In the most recent session, the state attempted to usurp local control on issues ranging from public restrooms to policing.

On the latter, lawmakers forced through a ban on so-called “sanctuary cities” — which the bill’s author admitted do not exist in Texas — despite the protest of big city law enforcement across the state. The law requires local police to comply with immigration detainer requests that are supposed to voluntary and allows individual officers to violate the policies of their chiefs and ask anyone in custody their immigration status, including those held in a routine traffic stop.

Whether you agree with the “sanctuary cities” provision or not, insubordination in police departments and outright assault on local control should concern any Texan.

And so should the increasingly authoritarian rhetoric Abbott has used to defend it.

“As opposed to the state having to take multiple rifle-shot approaches at overriding local regulations, I think a broad-based law by the state of Texas that says across the board, the state is going to preempt local regulations, is a superior approach,” Abbott has said.

The approach is “more simple, more elegant,” Abbott says.

Yeah, well, so is communism. One rule for all. Real simple.

Hypocritical Republicans

Until recently, I was confounded by how a conservative Republican governor could get away with such an argument. Isn’t this hypocrisy from a guy who used to brag as attorney general about suing President Barack Obama for government overreach?

Then I heard some likeminded lawmakers explain. Sen. Konni Burton, R-Colleyville, for example, argues that the states created the federal government, limiting federal authority.

It’s a flawed premise, one that the Confederate states tried to use to secede from the Union, says Charles “Rocky” Rhodes, professor of constitutional law at South Texas College of Law Houston.

“There’s nothing to support that,” he said.

While it’s true that the state conventions ratified the U.S. Constitution, the U.S. Supreme Court has held for almost 200 years that it was an act of the people, Rhodes says.

So, yes, Republicans in Austin are hypocrites for bemoaning federal overreach while at the same time micromanaging the crime-fighting tactics of Houston’s police chief.

But Burton and others make a valid point when they say that cities lack the sovereignty of states. Cities do derive power from the state.

Texas law allows home-rule cities such as Houston the right to govern as local leaders see fit, so long as local laws don’t violate state law or the state constitution.

Killing the home-rule

And there’s the rub. Now state leaders are taking aim at specific local laws by aggressively preempting them with state legislation.

And technically, there’s nothing in Texas law to stop them. Lawmakers in Austin can trample local rule as they see fit. They, essentially, can kill homerule by a thousand cuts.

“Whether that’s good policy or not, or inconsistent with the idea that local people should be controlling what happens in their locality, is a different issue,” Rhodes, the constitutional law professor, said.

One of the most striking arguments that the anti-local control folks make is that they’re doing it to preserve liberty. That, somehow, ordinances to keep plastic bags from polluting waterways in a city or from suffocating cattle in a rural town are attacks on liberty.

Even so, locals are better positioned to fight offending ordinances a few miles away than they are in a pink dome that in Texas can be 500 miles away.

The city of Houston, Rhodes points out, is not too much smaller than the population of America at the time the Constitution was ratified.

“The idea that a city of that size couldn’t govern itself would be shocking to the framers,” Rhodes says.

It should be shocking to all of us, even two centuries later.