Governor’s pandemic powers under fire
Speaking at a crowded Lubbock restaurant in early March, Gov. Greg Abbott lifted Texas’ statewide mask mandate and all restrictions on business capacity, declaring that the advent of COVID-19 vaccines and a drop in hospitalizations meant “state mandates are no longer needed” to keep the coronavirus at bay.
Five months later, Texas is in the middle of a massive COVID surge driven by the highly contagious delta variant, during which Abbott has contracted the virus himself. What’s more, the governor is embroiled in an escalating legal and political battle with lo
cal leaders and several dozen school districts that are openly defying him by requiring masks on campus.
The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.
On Thursday night, the Texas Supreme Court handed Abbott a defeat, denying the governor’s request for the court to block a mask mandate from going into place in Travis County, allowing such mandates to remain in place for now.
Meanwhile, pediatric wards are bracing for an even sharper uptick in patients as millions of vaccine-ineligible children return to school, in some cases with unmasked classmates. A recent statewide poll found that 72 percent of Texans over age 18 support mask requirements in K-12 schools, while about two-thirds of parents said they were worried their child will contract COVID at school.
Abbott also faces pressure from the federal government, as Biden directed the Department of Education on Wednesday to take action against state governors with policies against mask mandates in schools.
“Clearly, the challenges to the governor’s authority have been much bolder and more numerous and more pervasive throughout the state in this recent wave,” said Dale Carpenter, a constitutional law professor at Southern Methodist University in Dallas.
The Texas Education Agency had updated its guidance to school districts Thursday, saying the governor’s order banning mask requirements is not being enforced “as the result of the ongoing litigation.” The agency said further guidance “will be made available after the court issues are resolved.”
58 ‘noncompliant’ districts
Still, as classes start for the fall semester, Abbott is showing no sign of reversing course.
“We are all working to protect Texas children and those most vulnerable among us, but violating the governor’s executive orders — and violating parental rights — is not the way to do it. Gov. Abbott has been clear that the time for mask mandates is over; now is the time for personal responsibility,” Renae Eze, spokeswoman for Abbott, said Thursday. “Under Executive Order GA-38, no governmental entity or school district can require or mandate the wearing of masks. There is no loophole.”
Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.
“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”
West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.
At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.
Garcia said he hopes Abbott will come around on the local mask mandates.
“Our intention is not to fight the governor. Our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let
us continue with our work.”
The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.
The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.
“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.
In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”
Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.
“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said.
“There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”
Carpenter, the SMU professor, said the case raises difficult constitutional questions for the conservative jurists on the court.
“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”
Warren Norred, a conservative lawyer who has sued Abbott over COVID restrictions and argued in favor of the governor’s ban on mask mandates, said the case boils down to the question about individual rights.
“The basic difference between the emergency orders that I have opposed and this one, which I support, is that those orders had a real impact on people’s rights and livelihoods,” he said.
A mask loophole?
Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.
The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education
law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.
“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”
Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.
It’s unclear what Paxton’s list is designed to accomplish, as there are already lawsuits proceeding across the state addressing the issue. The attorney general’s press office did not respond to emailed questions asking how it compiled the list or what Paxton hopes to achieve with it. A public information officer at one school district on the list, Eagle Pass ISD, denied that the district has a mask mandate, saying instead that students are simply requested to wear masks but are not punished if they refuse to comply.
“Instead of explaining why we’re not complying with the law, he instead just called us names,” Eichelbaum said.