Federal vs. State vs. Local

[Reeve]

So in Texas right now an interesting thing is happening. The State government is very much against the Federal government sticking its noses into Texas' business. Yet they also seem interested in not allowing Local governments to govern themselves within the state.

Historically in Texas, cities over a certain size (all of the medium to large cities and some towns) have a right to "home rule." That means that unless something is forbidden them by the state or federal government, they get to make and enforce their own rules. Some of the rules that have come up recently are as follows:

Austin has made ordinances to restrict the use of plastic bags in grocery stores
Denton has made an ordinance to forbid the use of hydraulic fracturing within its city limits
Houston has created the Houston Equal Rights Ordinance (HERO) to ensure businesses open to the public can't deny service based on protected classes, particularly homosexual and transgender were the impetus for this, but it covers everyone
Houston has created its own environmental regulations, including air quality regulations

Now all of these cities is claiming that they have both the close knowledge of their constituency and the responsiveness to handle complaints and issues in their city more quickly and effectively than the State government. When there were some chemical plants spewing noxious chemicals into the atmosphere, the state and federal authorities weren't moving fast enough so Houston took it upon itself to prosecute the offenders.

The state, on the other hand, feels that the cities are overstepping their authorities and threatening business or certain social groups and that State protection is needed to ensure fair treatment. They're also introducing legislation to end "home rule" in Texas cities.

Meanwhile, the Federal government is saying that the states often are bad actors and need federal oversight.

So I guess the question is who should prevail? How should that division of power be split?

[Rukentuts]

The "state's right" thing is a crock. It's analogous to "highest domain in which we hold power". Otherwise we wouldn't have laws in OK (i think) for example that prohibit cities from increasing their minimum wages. I can't answer your last blanket question, as it is highly issue specific.

[Daelak]

So in Texas right now an interesting thing is happening. The State government is very much against the Federal government sticking its noses into Texas' business. Yet they also seem interested in not allowing Local governments to govern themselves within the state.

Historically in Texas, cities over a certain size (all of the medium to large cities and some towns) have a right to "home rule." That means that unless something is forbidden them by the state or federal government, they get to make and enforce their own rules. Some of the rules that have come up recently are as follows:

Austin has made ordinances to restrict the use of plastic bags in grocery stores
Denton has made an ordinance to forbid the use of hydraulic fracturing within its city limits
Houston has created the Houston Equal Rights Ordinance (HERO) to ensure businesses open to the public can't deny service based on protected classes, particularly homosexual and transgender were the impetus for this, but it covers everyone
Houston has created its own environmental regulations, including air quality regulations

Now all of these cities is claiming that they have both the close knowledge of their constituency and the responsiveness to handle complaints and issues in their city more quickly and effectively than the State government. When there were some chemical plants spewing noxious chemicals into the atmosphere, the state and federal authorities weren't moving fast enough so Houston took it upon itself to prosecute the offenders.

The state, on the other hand, feels that the cities are overstepping their authorities and threatening business or certain social groups and that State protection is needed to ensure fair treatment. They're also introducing legislation to end "home rule" in Texas cities.

Meanwhile, the Federal government is saying that the states often are bad actors and need federal oversight.

So I guess the question is who should prevail? How should that division of power be split?

The resources to combat discrimination and environmental degradation, let alone the jurisdiction of pollution and air quality, the federal level is superior.

[vastx]

It's the beauty of federalism. The relationship has always been between the federal government and state governments. Local governments were never a part of the conversation. However, different states handle local laws and authority differently.

Federalism™
Buy some today.

[Endus]

It should be determined by balancing the efficiency of funding what needs to be done (generally easier as you scale upwards, due to economies of scale; a village of 300 people probably can't afford a snowplow of their own, but the State definitely can), and the grasp of local context needed to make informed decisions (generally easier as you scale downwards, since it's unlikely the federal government can make a context-informed decision about whether to buy a new swingset for a local park).

It shouldn't be an antagonistic determination.

[Reeve]

It should be determined by balancing the efficiency of funding what needs to be done (generally easier as you scale upwards, due to economies of scale; a village of 300 people probably can't afford a snowplow of their own, but the State definitely can), and the grasp of local context needed to make informed decisions (generally easier as you scale downwards, since it's unlikely the federal government can make a context-informed decision about whether to buy a new swingset for a local park).

It shouldn't be an antagonistic determination.

When that determination becomes antagonistic, political, as it has in Texas, how do you solve the issue?

[Stormdash]

The difference is that a state government's sovereignty is pretty much unequivocal within its state, unless that state's own constitution has a 10th Amendment expy for the benefit of local governments. Municipalities are not sovereign unto themselves like a state is. The federal government is a sovereign, but it's charter is (still, despite studious effort) explicitly and specifically limited, and those limitations further back stopped by the 10th Amendment. Read Federalist 45; paraphrasing, Madison says the powers of the federal government are few and defined and those retained by the state are numerous and indefinite.

Another key distinction between Texas v. Austin and US v. Texas or anyone else, is that the states have something the federal government (still, despite studious effort) does not have -- the "general police power" (I am on my phone and just can't be arsed to link right now, but I am sure wiki has a good entry on it. In short, it is the broad power to regulate for the health, safety, welfare, and public morals of the people).

[Endus]

When that determination becomes antagonistic, political, as it has in Texas, how do you solve the issue?

In the USA?

Through voting. In theory, at least. If your State representatives are overstepping, vote for someone else. If the local guys are, ditto.

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The difference is that a state government's sovereignty is pretty much unequivocal within its state, unless that state's own constitution has a 10th Amendment expy for the benefit of local governments. Municipalities are not sovereign unto themselves like a state is.

US States are in no way sovereign, either. You're starting from a false premise.

[Stormdash]

That voting solution is one of the best reasons for federalism and keeping as many functions of the state as local as possible -- it is a lot easier to influence your elected leader or commissioner if they are in line with you at Starbucks on a regular basis.

[Cybran]

Sounds like it's time for secession.

[Stormdash]

In the USA?

Through voting. In theory, at least. If your State representatives are overstepping, vote for someone else. If the local guys are, ditto.

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US States are in no way sovereign, either. You're starting from a false premise.

Tell that to Michael Vick, whose state and federal convictions for his dogfighting were not a violation of double jeopardy because they were brought by separate sovereigns. Tell it to George Bush, who would have loved to prevent that murdered from being executed in Texas at the behest of the Mexican government but couldn't because... the state is sovereign and was not otherwise barred by the Constitution.

[Reeve]

In the USA?

Through voting. In theory, at least. If your State representatives are overstepping, vote for someone else. If the local guys are, ditto.

Eh, that's difficult in a place like Austin, though, where the majority of the people are fairly liberal and would support the plastic grocery bag ban, and their city government is responsive to that, but because the state and federal voting districts are gerrymandered so badly, in this massively liberal city, there are 4 districts that end up voting conservative and only one that votes liberal for state office. So the representatives at the state level don't really represent the people voting for them.

[Endus]

Tell that to Michael Vick, whose state and federal convictions for his dogfighting were not a violation of double jeopardy because they were brought by separate sovereigns.

Now you're just straight-up misusing the word "sovereign".

Tell it to George Bush, who would have loved to prevent that murdered from being executed in Texas at the behest of the Mexican government but couldn't because... the state is sovereign and was not otherwise barred by the Constitution.

Again, not an issue of sovereignty. You really don't understand what the word means.

The "state sovereignty" enjoyed by US States is not full sovereignty. It means they're entitled to legislate on things the federal government doesn't overrule them on. Which isn't much different than a municipality legislating on things the State government doesn't overrule them on. Cities can absolutely sue the State they belong to, if they feel there's been an abuse of power.

http://www.toledoblade.com/Courts/20...c-cameras.html

So, again, you're operating from a false premise.

[Stormdash]

Here you go Endus --

"Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own inherent sovereignty, not from the Federal Government..."

That is Sandra Day O'Connor, from a case called Heath v. Alabama

Guess she didn't know what sovereign meant either, yeah?

"The state's power... is derived from its own inherent sovereignty".

[Endus]

Here you go Endus --

"Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own inherent sovereignty, not from the Federal Government..."

That is Sandra Day O'Connor, from a case called Heath v. Alabama

As I responded above, state sovereignty in the USA is not the same as the sovereignty of a nation. You were using the term in the latter sense, which was incorrect. "Sovereignty" is a statement that you are the supreme arbiter. If the States can be overruled on something by the federal government, they aren't fully sovereign.

[Stormdash]

The US sovereignty is derived by delegation of state sovereignty to it, Endus. That is the source of the federal government's power and, indeed, its legitimacy to govern at all. By mutual assent of the states, that government was given special dominion over the finite areas over which it was given power, that is the Supremacy Clause meaning and purpose, but you have the entire flow of power backwards. "Sovereignty" is what it is. The states used their own to create that of the federal government, not the other way around.

[Citizen T]

So in Texas right now an interesting thing is happening. The State government is very much against the Federal government sticking its noses into Texas' business. Yet they also seem interested in not allowing Local governments to govern themselves within the state.

Historically in Texas, cities over a certain size (all of the medium to large cities and some towns) have a right to "home rule." That means that unless something is forbidden them by the state or federal government, they get to make and enforce their own rules. Some of the rules that have come up recently are as follows:

Austin has made ordinances to restrict the use of plastic bags in grocery stores
Denton has made an ordinance to forbid the use of hydraulic fracturing within its city limits
Houston has created the Houston Equal Rights Ordinance (HERO) to ensure businesses open to the public can't deny service based on protected classes, particularly homosexual and transgender were the impetus for this, but it covers everyone
Houston has created its own environmental regulations, including air quality regulations

Now all of these cities is claiming that they have both the close knowledge of their constituency and the responsiveness to handle complaints and issues in their city more quickly and effectively than the State government. When there were some chemical plants spewing noxious chemicals into the atmosphere, the state and federal authorities weren't moving fast enough so Houston took it upon itself to prosecute the offenders.

The state, on the other hand, feels that the cities are overstepping their authorities and threatening business or certain social groups and that State protection is needed to ensure fair treatment. They're also introducing legislation to end "home rule" in Texas cities.

Meanwhile, the Federal government is saying that the states often are bad actors and need federal oversight.

So I guess the question is who should prevail? How should that division of power be split?

The only option you really have is to attempt to amend the Texas Constitution.

Article 11 section 5 says "The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State."

Of the above items mentioned, only the plastic bag one is probably overreach by the State Government. All of the others most likely have State laws enacted to cover them so according to the Constitution they would be inconsistent with the State law and thus not legally enforced.

[Cybran]

Keep your Confederate money
Keep all them crinolines honey
If we all turn out with a Rebel shout the South shall rise again

[Mihalik]

The issue isn't really about "Home Rule", but rather about "What kind of home rule". While Texas is a deep Red State, its major cities (which happen to be utterly under represented in their own state legislature), seem to have Blueish inclinations, especially places like Austin.

There is a very good reason for diluting the voting power of certain groups of people via gerrymandering. You drown out their voices, and create a legislature which fits a certain political scheme you approve of.

[obdigore]

US is setup as a 'Highest is Rightest', 'You can do anything you want that isn't said to be illegal' system.

Which means if a federal or state legislature doesn't say a municipal legislature can't do something (by passing laws), then that municipal legislature has the right to do it.

If Houston wants to ban short-shorts and dogs that weight less than 20 lbs, that is their right, until the state or federal legislatures pass a law saying they can't.

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All of the others most likely have State laws enacted to cover them so according to the Constitution they would be inconsistent with the State law and thus not legally enforced.

That isn't true.

If Texas state law says you can't pollute more than 10,000ppm on what you are dumping into the water, and the local legislature says you can't pollute more than 8,000ppm on the same stuff, because the local legislature isn't going against what the State said, their law stands.

'Inconsistent...' doesn't mean 'isn't in complete agreement with', but rather means 'it doesn't go against'. So using the above example, state is at a max of 10,000ppm, your local legislature passes a law saying 'we think a max of 100,000ppm is better!', then they are violating that state law.