Balance and Diffusion of Power

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Back when U.S. history and civics were taught in schools, citizens learned that an important part of preserving freedom in America is the balance and diffusion of power between the three branches of the federal government — the executive, legislative and judicial. Even less understood in our system is the fact that both state and federal governments have their own spheres of sovereignty. This diffusion of sovereignty between the state and federal government plays a very important role in preserving individual freedom in this country.

In 2011, after I was elected a Texas Railroad Commissioner, one of the first large foreign delegations I met with was one from Japan. They had come to the U.S. to research what effect hydraulic fracturing would have on world oil markets and, ultimately, their country. They asked many questions about the Obama administration’s opposition to hydraulic fracturing and if it would ultimately be shut down in Texas. I said no — Texas (the states) in our system had the right to regulate the oil industry. If the federal government tried to substantially reduce or regulate hydraulic fracturing, Texas would sue them.

The reaction from the Japanese delegation was very instructive. They were flabbergasted and didn’t comprehend that a state could challenge an edict from the national government. In many countries, only the national government has any sovereign powers.

An issue that has been widely misunderstood by many people in Texas — the mainstream media has been instrumental in misleading people on this issue — is that local governments, municipalities and counties are not sovereign but are instruments of the states. The Texas Legislature has been accused of hypocrisy in the last few years because of its pushback against federal laws and regulations while invalidating some local ordinances. What their accusers either don’t understand or choose to ignore is that states are not mere instruments of the federal government. They do have some sovereignty — read the 10th amendment. Also, local governments are instruments of state government and have no power other than what has been delegated by the state government.

The 10th Amendment to the Constitution, ratified December 15, 1791, reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” The original intent of this amendment is to recognize that some but not all sovereignty was delegated to the national government (the United States) and some was also reserved by the people or the various states.

While I certainly don’t think we need to turn the state Legislature into a super city council, it does need to exercise sound judgment and discretion when it overrides a local ordinance. However, the Legislature has been on track when it passed such bills as SB 4 (on sanctuary cities) this session and HB 40 (ban on fracing bans) in the 2015 session.

Though it may be a topic not many fully understand or are aware of, it is crucial to know the power each state is provided in the Constitution in order to understand the balance of power in the United States.


About the author: David Porter has served as a Railroad Commissioner (2011–17) and Chairman (2015–16), as well as Vice Chairman of the Interstate Oil and Gas Compact Commission (2016). Prior to service on the Commission, Porter spent 30 years in Midland, Texas, as a CPA working with oil and gas producers, service companies and royalty owners. Since leaving the Commission, Porter works as a consultant for oil and gas companies. He also serves as Chairman of the 98th Meridian Foundation, a nonprofit concerned with water, energy and land issues.


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