State Rep. John Turner pens an op-ed that sums up the arguments for defying Greg Abbott’s executive order banning mask mandates.
Rep. John Turner
The governor’s attempted ban on local decision-making is set out in his most recent executive order of July 29. That document not only purports to prohibit requiring masks in schools, but also to suspend any existing laws that would allow any local entity or official to make this decision. The governor ostensibly relies on the Texas Disaster Act of 1975, which gives a governor the ability to declare a state of disaster and then assume certain extraordinary powers to respond to that disaster.
But is prohibiting local action on masking in schools within the governor’s powers, even under the Disaster Act?
The text and structure of the Disaster Act strongly suggest that the special powers the governor has during a disaster declaration must be exercised to actually respond to the declared disaster. The act allows a governor to suspend certain statutes, for example, only if compliance with the statute “would in any way prevent, hinder, or delay necessary action in coping with” the disaster.
Here, the declared disaster is the COVID-19 pandemic. At least in this legislator’s view, it is hard to see how a law or rule that allows masking mandates by local entities is preventing or hindering necessary action in coping with that disaster. In fact, the opposite is true: the scientific consensus is that mask requirements help control the spread of this deadly virus. At a minimum, statewide prohibition of mask requirements is not “necessary action” to counter COVID-19.
It is true that, earlier in the pandemic, courts held that certain statewide COVID-19 measures ordered by the governor could override conflicting local rules adopted by cities or counties. But even if those cases were correctly decided, they came at a time when the governor himself was ordering meaningful measures in response to the crisis, such as occupancy limits for businesses and restrictions on gatherings. Schools were also requiring masks.
Then, the governor was arguably attempting to standardize a statewide response to the pandemic. Today, that is no longer the case — unless one considers preventing others from responding to be a response.
It might be reasonable for a governor to seek to impose some uniformity on disaster measures. But the Disaster Act shouldn’t be read to allow a governor to declare a disaster, only to focus his newly acquired powers on preventing local governments from dealing with that disaster.
This is basically the argument that have been made so far in the various lawsuits filed so far challenging the mandate ban in the executive order, as well as my own intuition. Some form of “the governor doesn’t actually have the authority to do that”, based in turn on “the law he’s using to justify his actions doesn’t say what he claims it says” is what you’d expect. Turner also notes that school districts across the state impose all kinds of requirements on students for what they can and cannot wear, generally without controversy, so why would including a face mask in those requirements be any different?
All this sounds sensible, but it will come down to what the courts do and don’t accept. That could hinge on a specific word or phrase in the law, or the omission of a specific word or phrase, or it could just be what the courts say that the law says. Really, I just mean one court, the Supreme Court, because that’s ultimately where all this is going. At least we have some idea of what they’ll be fighting over.
THE MASTER VS. HIS SERFS
Re: “At least we have some idea of what they’ll be fighting over.”
Indeed, that’s exciting for legalists, and law review articles will no doubt follow in due course. In the meantime, Rep. John Turner states it well for the general audience.
But it really all comes down to asserting dominance. And this is the best test case.
Does Abbott get to impose his will even if it means using disaster act powers to stop the underlings from fighting the disaste, and make them submit? Larger question: Must a preposterous order issued by a madman be obeyed?
Abbott’s Court will predictably say: Of course. There can only be one Master, and his will is command. Using fancier legal verbiage, as is customary.
In his mandamus briefing, Paxton actually calls Abbott “Commander in Chief.” And they are relying on a case against the El Paso County Judge from last year, in which a loyalist of Abbott — detractors might call him an acolyte — did actually refer the the Governor as the one and only master to whom all others in the state owe subservience.
And, in case you didn’t know, immediate higher-court intervention is necessary lest …
ABBOTT, PAXTON, AND THE VIRUS SUFFER IRREPARABLE INJURY
“If not vacated, the district court’s order will cause severe and irreparable harm
to the State.”
“The order reaches far beyond the parties to this lawsuit by purporting to enjoin the Governor on a statewide basis. And the Governor lacks an adequate remedy on appeal: the hearing on Judge Jenkins’s temporary injunction is two weeks away, by which point innumerable local officials and school districts across the State will have ignored the Governor’s pandemic response, imposing mandates on Texans that GA-38 has forbidden. Texas’s effort to carry out an orderly, cohesive, and uniform response to the COVID-19 pandemic will have shattered. Immediate relief is necessary to prevent this inversion of the Disaster Act.”
That argument in the mandamus petition about irreparable harm is rich, Kibitzer. If Greg Abbott is disobeyed for two weeks, the (non)response to the pandemic will have been shattered.
Abbott’s central argument is that “Regulating the wearing of face masks qualifies as an exercise of the Governor’s power to ‘control . . . ingress and
egress to a disaster area” and the “occupancy of premises in the area,'” under the Disaster Act.
That’s a crappy argument. The Act says “ingress and egress *to* a disaster area,” not *within* a disaster area. “To” and “within” aren’t synonyms. The text of the Act allows Grabbit to order people to stay away from a disaster area. It doesn’t allow him to prohibit Judge Jenkins from requiring folks to wear masks.
The Act allows Grabbit to control the “*occupancy* of premises in the area,” not the *face wear* of people in the area. The leap from *occupancy* to control over the *garments* required for public safety violates the language of the Act.
Grabbit’s conduct outside his authority under the Public Safety Act. When he acts without authority, he is subject to injunctive relief to rein him in. The Disaster Act doesn’t grant him absolute discretion–only *limited* discretion under the terms of the statute.
Here’s some law:
[Quote]
[G]overnmental immunity protects exercises of discretion, but when an officer acts beyond his granted discretion—in other words, when he acts without legal authority—his acts are not protected…. [G]overnmental immunity [does not bar] suits complaining of … an officer’s exercise of judgment or limited discretion without reference to or in conflict with the constraints of the law authorizing the official to act…. And, as a general rule, “a public officer has no discretion or authority to misinterpret the law.”
[Endquote]
Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 163 (Tex. 2016).
Grabbit’s reach exceeds the limited discretion he was granted under the Disaster Act. We’ll see what happens Austin, but it doesn’t seem right that he should be permitted to preempt public health decisions in Texas cities by stretching the language of the Disaster Act so radically.