On November 3, 2020, as America watched the first results of a fateful presidential contest roll in, voters in a North Texas suburb struck a blow for workers’ rights. Euless residents approved a proposition limiting some large companies’ ability to force employees to work overtime if they didn’t want to.
The “fair workweek” initiative, comparable to measures passed recently in a handful of other cities, was led in Euless by employees of LSG Sky Chefs, an airline catering giant and meal-supplier for American Airlines. These workers, unionized with Unite Here, said they were being overwhelmed with mandatory overtime hours, often announced at the last minute, as American Airlines, headquartered near the sprawling Dallas-Fort Worth airport, sought to dramatically increase flight volume.
“You can have a wife and children, and yet every day you are forced to stay at work, and you have no time to even go back and sit and relax and play and take care of children,” said Samuel Tandankwa, a Sky Chefs driver and Unite Here member, recalling the conditions in 2019 and leading up to the COVID pandemic.
Despite getting voters’ approval, the initiative faced legal troubles from the first. Some city officials doubted it could be enforced. Sky Chefs told the Texas Observer it didn’t apply to them since they maintain a national contract with Unite Here. And Texas Attorney General Ken Paxton had already written a letter stating the policy would violate a state law that bans cities from setting minimum wages. Nevertheless, Tandankwa told the Observer in July that since the campaign, the company actually has turned away from using mandatory overtime, freeing up workers to meet family obligations, and neither he nor local worker advocates want to lose the ordinance.
But Euless’ overtime measure is among the local ordinances that will be vaporized by Texas’ House Bill 2127, dubbed the “Death Star” bill by critics, which was signed by GOP Governor Greg Abbott last month and takes effect in September. It’s causing uproar around the state, as city officials, workers, and others try to figure out what parts of municipal law and regulation the bill will nullify.
The legislation’s real intent is both narrower and potentially more profound than just upending city ordinance-making powers.
The bill’s sweeping, alleged purpose is stated in its opening sections: “returning sovereign regulatory powers to the state where those powers belong.” However, closer examination suggests that the legislation’s real intent is both narrower and potentially more profound than just upending city ordinance-making powers. First, it is a laser beam aimed at a small group of progressive ordinances improving worker and tenant protections—local victories won through hard-fought campaigns over the course of more than a decade. Second, and more importantly, it’s a bid to permanently hamstring municipal democracy in Texas, especially in its big blue cities. Cities are where most Texans live; they are increasingly liberal, their populations often majority nonwhite, and they are the level of government most responsive to ordinary citizens. In essence, the Legislature decided there was too much Democracy afoot in Texas, so it did something about it.
“To me, that’s the will of the people being taken away,” said Tevita Uhatafe, a Euless resident who works for American Airlines and is also a vice president of the Texas AFL-CIO. “We voted for it … and here we are, we’re going to get it taken away because people who claim to hate big government are acting just like [it].”
“There is no precedent for what they did this time,” said Rick Levy, president of the Texas AFL-CIO. “It was not a measured response to a given policy that corporate interests didn’t like; it was a wholesale transfer of power from cities to politicians in Austin.”
HB 2127 is mostly broad in its language—and thus unclear in what all it actually will do. It lists vast categories of law—agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, and property—in which cities may not regulate an issue that the state already regulates, unless explicitly authorized to do so somewhere in state law.
Some cities and legal experts argue that would return populous cities to the very limited level of power they had in Texas until the early 1900s. Growing cities were burdening the Legislature with so many local concerns that the Lege put an issue on the ballot that, in essence, allowed cities with more than 5,000 people to self-govern—a capacity known as “home rule.” Voters passed the amendment in 1912. Cities could now legislate broadly, as long as their ordinances didn’t contradict state law. The City of Houston has already filed suit to block the Death Star bill, charging that undoing home rule would require another voter-approved constitutional amendment.
The full extent of what local policies the bill will undo is unclear, say city attorneys. “People ask me often … ‘Are we combing through our ordinances?’ And the answer to that is ‘No,’” San Antonio City Attorney Andy Segovia told the Observer. Because of the bill’s vague wording, he said, “It would be almost an impossible task to identify those [ordinances] that we would have a high degree of confidence would be affected.”
However, the Legislature was specific in attacking local labor and tenant protections along with a couple other grab-bag issues. The bill forbids local ordinances on overtime and other work scheduling matters, policies mandating rest breaks for construction workers like those maintained in Dallas and Austin, and also “fair chance hiring” policies like those on the books in Austin and DeSoto, which help the formerly incarcerated get jobs. It forbids eviction protections like those in Austin and Dallas, too. Another provision appears to target Austin’s ban on cat declawing, while convoluted carve-outs grandfather in existing local regulations of payday lenders and so-called puppy mills while preempting future measures.
Bills to wipe out local regulation of employment practices were pushed by the state’s powerful business lobby in the 2019 and 2021 legislative sessions but didn’t pass. The core language of those bills was inserted into the Death Star bill.
City attorneys told the Observer they could not provide a list of affected ordinances and would ultimately need clarity from the courts. Taking a page from the state’s bounty hunter-style abortion ban, HB 2127 expressly authorizes individuals and trade associations to sue cities or counties for violations. A judge may order a city to abandon its policy but can only award the plaintiff costs and fees, so some cities may simply wait for these suits to arrive before making decisions.
HB 2127 is just the latest entry in a saga of state “preemption,” the term referring to a higher level of government big-footing a lower level. Over the last decade, the Legislature has undone local efforts to regulate fracking and ridesharing companies, to reduce police budgets and decriminalize homelessness, to prohibit discrimination against Section 8 tenants and reduce deportations from jails, while also capping local tax revenues. Between 2018 and 2019, Austin, San Antonio, and Dallas also passed policies requiring employers to provide paid sick leave. These ordinances were thoroughly stymied by the courts, but the business lobby—exemplified by the National Federation of Independent Business and the Texas Public Policy Foundation—went on the warpath against local labor protections anyway.
U.S. Representative Greg Casar, a Democrat representing a swath of Texas from Austin to San Antonio, led the charge as an Austin City Council member from 2015 to 2022 when the capital city pushed the bounds of local progressive policymaking further than any other city in the state and likely across the South. He sees a continuous thread in the state’s pushback from then to now.
“Big corporate lobbies do not want our democracy to work for working people,” Casar told the Observer. “And they don’t want any examples that can show that democracy can work for working people.”
GOP state Representative Dustin Burrows, author of the Death Star bill, minces no words in describing his feelings about local government. “We hate cities and counties,” he said in 2019, a comment caught on a surreptitious recording. However, his explanation of HB 2127’s provisions was much less clear.
It’s needed, he said at one point, because small businesses just can’t navigate a “patchwork of local regulations”—although business-related local policies have often exempted companies below a certain threshold. He said the bill would actually help local officials by giving them an excuse not to vote on “countless issues that activists have been harassing them to pass.” In committee, he said the bill would encourage the Legislature to “do a better job of regulating … industry”—a claim that would surely elicit a bitter chuckle from any seasoned watcher of Texas politics. Throughout, Burrows stated that cities would retain control over core functions like zoning and public safety. On the other hand, he also specifically promised that cities could still regulate billboards—and the billboard industry is already scheming openly to the contrary.
Perhaps his most accurate explanation about the bill—and his vision of democracy—came when he complained at a hearing that “Some of the same advocates that come to the Legislature with their agenda that are not able to get it through here at the state Capitol have now gone to some of our cities” and gotten them to adopt measures “to implement their vision of Texas in a way that we have already rejected.”
The bill’s Senate sponsor, Republican Brandon Creighton, at one point defended HB 2127 with the inspiring phrase: “We write statute that’s ambiguous on purpose and vague.” And then he slipped into it a provision banning local governments from passing measures to give renters some protection from eviction, while utterly misdescribing what he was doing.
Levy, the state AFL-CIO president, worries that the Death Star law’s strange structure will allow lobbyists to slip seemingly innocuous provisions into bills simply to create state “regulation” in a policy area for the purpose of later undoing local policies in court.
“It sets up the state Legislature as the place where lobbyists can go to play to get anything they don’t like on the local level invalidated,” Levy said. Such lobbyists, of course, represent the very same organizations that are empowered to sue cities or counties for violations of the new law—a process whereby, as the City of Houston has put it, cities and taxpayers will end up funding “lawsuits filed by trade associations seeking to deregulate their industries at the local level.”
In its lawsuit seeking to block HB 2127, Houston argues that the bill will “effectively repeal” the state’s century-old home rule regime—which cannot legally be done through an ordinary bill but would require a constitutional amendment approved by the people. “The State of Texas is not its state legislature alone,” the suit says. “Instead, Texas’ sovereign powers are vested in Texans themselves and, in their Constitution, Texans delegated [home rule] powers to cities.”
As of July 24, the state has yet to file an answer to the lawsuit, though Burrows made sure to note on Twitter that the Bayou City had enlisted the help of an attorney based in California. San Antonio has joined the suit against the state as well.
Declaring war on home rule is a recent phenomenon concentrated in states like Texas, Florida, and Arizona that have both right-wing legislatures and large urban areas. “The general movement from the late 19th century to the late 20th or early 21st century [was] in the opposite direction: to increase respect for local self-government,” said Richard Briffault, a scholar of preemption at Columbia Law School. “But what you have been seeing in the last, I’d say, 15 years is a big pushback on that, and a lot of it correlates with [the urban-rural divide]—a lot of it correlates with party, and a lot of it correlates with race.”
That timeline corresponds with the Republican takeover of many state legislatures, while many cities (such as Houston) grew ever-bluer. The Death Star bill specifically forms part of a more recent trend of so-called super preemption, meaning measures that target city powers broadly, but experts say Texas’ law is novel in its scope. “In the breadth of it, in how open-ended it is, in the ways in which it really does seem to try to completely reorder the relationship between cities and the state, I do think it’s something new,” said Nestor Davidson, another scholar of state-city conflict at Fordham University.
“If you look at the role that cities play today in terms of being the level of government closest to the people,” Davidson said, “if they don’t have the authority they need to be able to respond … I do think ultimately that that’s a democracy issue.”
Darwin Hamilton recalls clearly the late night at Austin City Hall in 2016 when his city became the first in the South to pass a fair-chance hiring policy, which forbids private employers from initially asking about applicants’ criminal backgrounds. An advocate on criminal justice issues who was formerly incarcerated himself, he still remembers how the crowd erupted. “It was just a monumental and historic night,” Hamilton told the Observer. “Given who our opposition was … attorneys, well-funded, from [the Texas Public Policy Foundation] and staffing companies, Chamber of Commerce—and then here are these formerly incarcerated people who basically won the debate that night.”
He and his allies spent the next few years fighting state legislation to undo the victory—successfully, until the Death Star arrived.
A statewide but much more limited version of the fair chance hiring policy, applying to public employers only, died at the Capitol this year, along with measures mandating rest breaks and various other versions of pro-worker and pro-tenant policies over the years. Assuming Houston’s lawsuit does not succeed, progressive activists will have to recalibrate their strategies post-HB 2127.
“[HB 2127] doesn’t necessarily mean that there still can’t be a lot of really innovative and amazing things that happen at the local level,” said Kara Sheehan of the nonprofit Local Progress. She pointed to San Antonio, which rather than giving up entirely on a proposed policy mandating rest breaks for construction workers is now scaling it back to apply only to employers contracted or funded by the city. A measure along those lines should survive the Death Star.
“I think that it’s going to be just more fuel for this kind of current wave of unionization.”
More ambitiously, private-sector union drives can lead to collective bargaining agreements containing requirements comparable to those that cities can no longer impose. Levy suggested HB 2127 is “telling workers … ‘You’re on your own, you better organize,’ and I think that it’s going to be just more fuel for this kind of current wave of unionization” that’s playing out in workplaces from hospitals to newspapers to coffee shops.
Last, there’s always the level of government to which even Texas must defer. As a historically hot summer bakes the Southwest, Casar, the councilman-turned-congressman, is pushing the federal Occupational Safety and Health Administration to accelerate its ongoing process of promulgating a heat safety standard, which could mandate rest breaks for construction workers and other laborers nationwide for the first time.
“Mourn, and then organize,” Casar advised. “I and lots of other organizers and elected officials put our lives into [measures undone by the Legislature], but this is what the right wing in power in the state does. … What they were able to do is pass a law to try to snuff out policies—but I don’t think they can snuff out that local democracy. I think that only happens if we let them.”
