Texas Supreme Court Just Tossed Bag Bans. What's Next?

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In this case, at least, Dallas pulled its hand back before it got slapped. On Friday, the Texas Supreme Court unanimously ruled that a state law regarding the disposal of solid waste preempted Laredo's plastic bag ban. Similar bans in about a dozen other Texas cities are now effectively dead.

Because of the City Council's decision to end a 5-cent plastic bag fee in 2015 after business groups sued the city, Dallas wasn't directly effected by the ruling. The decision signals a new era in the fight between Texas cities and the state government in Austin over local control.

Dallas City Council member Philip Kingston is helping lead the fight for paid sick leave in Dallas. If providing sick leave becomes mandatory for Dallas employers, as it has in Austin, the city will, in all likelihood, get sued by business groups trying to save their members some cash and by Texas Attorney General Ken Paxton, who never met a progressive city policy that he didn't think violated state law. Kingston, as you might expect, was not a big fan of the court's decision Friday.

"Not great jurisprudence. Preemption is supposed to be explicit (e.g. 'we intend to preempt cities from regulating what rubbish is discarded and how'). This is the Court doing the Lege's dirty work for it," Kingston tweeted. "A traditional small-government conservative would tell you that preemption should only be used to protect oppressed groups."

Bennett Sandlin, executive director of the Texas Municipal League, an advocacy organization for more than 1,100 Texas cities, says the court's decision, and the fact that business groups sued to stop the bag law in the first place, is indicative of a major shift in the way conservative politicians view the role of government.

"It's an attack that's going on around the country," Sandlin says. "There are some national think tanks, ALEC is the name of the main one, that have got this brilliant idea that businesses just need to go the statehouse and cut cities off at the knees. They don't ever have to deal with different cities that have different circumstances."

ALEC — the American Legislative Exchange Council — drafts and shares legislation it views as pro-business with conservative legislators around the country. Local representatives file the council's model bills around the country, Sandlin says, leading to promotion of ALEC's pro-state government model.

"I call it the Goldilocks form of government. The federal government's big and bad. Local governments are small and bad, and somehow state government gets it just right," Sandlin says. "That cannot possibly be true. It's just crazy, but that's the thinking these days."

If the bag ban had passed 15 years ago, no one would've sued to stop it, Sandlin contends.

"When you think back to sort of old-fashioned Ronald Reagan conservatism, he said that the government closest to the people governs best," Sandlin says. "There used to be a very conservative embrace of the concept of small government and local control. It's really this business lobby, the ALEC group, that has pushed this idea that we need to trumpet state government over all other levels of government."

As Texas continues to fight over local control — in addition to paid sick leave, Sandlin points to the fight over short-term rental (think Airbnb) regulation — the state risks depriving its residents of setting their own local standards, Sandlin says.

"These decisions are not arbitrarily being made by councils and mayors; they're being made by the citizens," Sandlin says. "The same folks that are electing the mayor are the same ones electing state officials. The bag bans, in the handful of cities where they happened, were essentially put there by the citizens. They elected the council to do this. That's what they believe in. In cities where it makes sense to do it, why should some larger level of government overturn the will of the citizens?"

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