I just have one question about this.
Over the past year, Gov. Greg Abbott has issued disaster declarations across the state for a number of tragedies: the coronavirus pandemic that killed more than 50,000 Texans, a winter storm that left millions of people in freezing temperatures without power for days, hurricanes and floods that wiped out homes and local infrastructure.
The disaster declarations give the governor broad power to suspend state laws and regulations that hinder a jurisdiction’s recovery from a disaster and to allow the use of available resources to respond to the disaster.
Then, on May 31 the two-term Republican governor who is seeking reelection next year took the unprecedented step of declaring a disaster for 34 counties based on an increase of illegal immigration at the Texas-Mexico border. The declaration allowed Abbott to request the reallocation of $250 million of legislatively appropriated funds toward a border wall construction project pushed by his office.
“It’s extraordinarily unusual,” said Jon Taylor, professor of political science at the University of Texas at San Antonio. “Traditionally, it’s used for natural disasters,” he added, though state law does allow for its use for some man-made disasters.
Abbott’s move raises questions about the executive branch’s emergency powers, rekindling concerns raised during the early days of COVID-19 last year when Abbott used his broad emergency powers to enact restrictions shutting down businesses to curb the pandemic. In response, the Legislature tried without success to rein in Abbott’s authority this session.
But now, critics are questioning whether an increase in illegal immigration constitutes a disaster that merits emergency action by the governor.
State Rep. John Turner, D-Dallas, said Abbott’s use of a disaster declaration to reallocate legislatively appropriated funds to a project from his office stretches the concept of emergency authority “to its breaking point.”
“A governor should not be able to circumvent the legislative process by declaring such matters to be emergencies and then implementing whatever measures he wishes,” Turner said in a statement. “If a governor can commence such a long-term, multi-hundred-million-dollar public works project under the cover of emergency powers, it is difficult to know what the limits of those powers are.”
“I hope the Legislature will reassert its authority and resist this ill-considered action by the Governor,” he added.
See here and here for the background. My question is this: Who’s going to sue, and when will they do it? The Lege is not going to rein in Abbott – he’s not going to put that on the special session agenda, and even if he did the same Republicans who grumbled about his COVID actions are just fine with this. Filing a lawsuit is all that’s left. Maybe it works, maybe it doesn’t – my advice is to hire a better attorney than Jared Woodfill if you want a chance – but that’s the only avenue available at this point. It’s fine by me if there are multiple lawsuits, in both state and federal court. Just, start filing. The longer this charade goes on, the worse it’s going to get.
Re: “The Lege is not going to rein in Abbott.”
No dispute here, given that the relevant corralling bill died in the regular session and given that Abbott controls the special session agenda.
LACK OF NUMBERS: LEGE Vs. THIRD BRANCH
As for suing in state court, let’s not forget that whereas the Tex-Dems are the minority party in the Lege (and can’t rein in the Governor by amending the Disaster Act unless they have enough Republicans on board), the Dems have no representation on the SCOTX at all. No one to even squeal in dissent.
If you entertain the notion that judicial Republicans are impartial on politically sensitive matters, just look at how the election law cases were handled last year, and how the SCOTX found a way to nix the lawsuit by the Harris County midemeanor judges that challenged Abbott’s Executive Order 13 (on bail grant practices). In that order, the Governor took upon himself to infringe on the independence of the judicial branch and endeavored to impose his own criminal-justice policy upon them, using his Disaster Act authority as an excuse.
See list of EOs (not including Disaster Declarations) here:
https://lrl.texas.gov/legeLeaders/governors/displayDocs.cfm?govdoctypeID=5&governorID=45
Second, while any member of the Lege can file a bill on any subject in the regular session, the judiciary is a *reactive* adjudicatory & policymaking institution. A case has to be brought to the court by someone with legal standing to complain in order for the court to have a viable basis to rule. And just like the SCOTUS, the state supreme court can dispose of a case on lack-of-standing grounds even if the plaintiffs’ claim or claims initially survived a motion to dismiss or a plea to the jurisdiction in the trial courts. They can nix a challenge even outside the context of a regular appeal when asked to do so in writ-of-mandamus proceeding, which is typically resolved much faster. See In re Abbott, 601 S.W.3d 802 (Tex. 2020) [No. 20-0291] (granting immediate mandamus relief on finding that the judicial plaintiffs lack standing and that trial court therefore lacked jurisdiction to issue a temporary restraining order against governor and AG enjoining GA-13).
WALL STANDING
Who would have standing to challenge the project to commemorate President Trump with a wall unless Abbott resorted to eminent domain to condemn private land? And even in the latter scenario the outcome would not necessarily be a forgone conclusion. A public purpose wouldn’t be hard to find regardless of whether or not the Rio Grande ramparts would actually keep out the “hordes” if not the Huns.
As for suing in federal court, note first that usurpation of powers or violation of separation of powers would be a state law ultra-vires claim. Where is the federal question jurisdiction over claims alleging a violation of the Texas constitution or executive-branch infringement upon the powers of a co-equal branch of government? And how can the Governor even be sued in federal court unless there is a basis to claim that he violated someone’s federally protected rights? Standing problem. Federal question problem. Eleventh amendment problem. And that’s probably not even an exhaustive list.
KING GREGORY I OF TEXAS, ERECTOR OF BARRIERS
That said, if some exceptionally talented lawyer can come up with a nonfrivolous legal argument, such a lawsuit may at least serve as a vehicle to advance the public discourse on the rise of the imperial governorship (to analogize the Lone Star development with the rise of the Imperial Presidency in the last century as national phenom). And on that front, filing lawsuits that have little chance of success to make a political statement and score political points, our serial coronavirus litigator Jared Woodfill has indeed already made his mark on the history of law and politics in Texas. Or left a sordid trail of stains, depending on viewpoint.
THE FEDERAL ANALOGY
According to Wikipedia “Imperial Presidency” is a concept applied to the modern presidency of the United States. The term became popular in the 1960s and served as the title of a 1973 book by historian Arthur M. Schlesinger, Jr., who wrote THE IMPERIAL PRESIDENCY to address two concerns: that the presidency was uncontrollable and that it had exceeded its constitutional limits.
According to Thomas E. Cronin, political scientist and author of THE STATE OF THE PRESIDENCY, the Imperial Presidency is a term used to define a danger to the American constitutional system by allowing the Presidency to create and abuse presidential prerogative during national emergencies. (Wikipedia).
And yes, for the benefit of all ludophiles out there, not to mention for general PubEd purposes, ERECTOR is in the scrabble dictionary.
So you get to score points, Joel.