The cap and tax bill purportedly imposes new building codes.
In Pennsylvania, the only entity that can pass any laws is the state legislature. The state legislature delegates some authority to boroughs, townships, and cities at various levels through the municipal codes and enabling acts.
Enabling acts delegate administrative authority to municipalities. If municipalities exercise authority beyond the scope of the enabling act, it is exercising general legislative power which it does not have. A township council cannot simply dream up a law and pass an ordinance if there is no enabling act.
So municipalities adopt their zoning and building codes pursuant to state enabling laws. What does it mean if the federal cap and tax law indeed alters municipal zoning and building codes?
First, the building and zoning officers only have authority to enforce the building and zoning codes adopted by the municipality. To initiate an enforcement action, the building officer must cite the specific section of the building code that is allegedly being violated. This makes sense because the defendant has to know what he is being charged with in order to defend. If the building officer cites the federal law, it is an admission that he is enforcing a law he has no authority to enforce. Moreover, since it is a federal question, I believe the action can be removed to federal court.
Second, some may argue that the federal cap and tax law preempt or supercede state building and zoning enabling laws. In other words, the federal cap and tax law enables municipalities to adopt and modify building and zoning codes beyond the authority given them by the state legislature.
If the federal legislature can preempt parts of state zoning and building code law, it can expressly preempt all of it. If the federal legislature can preempt all state building and zoning law now, it had the power to do so from signing of the US Constitution. If the federal legislature always had the power to pass building and zoning codes, the states never had that power. The fact that the states have always exercised that power was not because the state citizens granted it that power through the state constitution, but because of the forbearance of the federal government. Furthermore, the state citizens could not have granted the state that power because they had already delegated it to the federal government.
I always believe that the last bastion against alleged federal power under the commerce clause was real property law. I guess it’s not.