Abbott at odds with constitution

Gov. Greg Abbott may not yet be Texas’ longest-serving governor. He’ll need to beat Beto O’Rourke this fall and then win again four years later to rival Rick Perry’s nearly 14-year tenure. But in Abbott’s seven years, he’s arguably become the most powerful governor in Texas history. What’s interesting, and perhaps a little frightening, is that his power stems not from his politics or his popularity, but from the pandemic-era state of emergency he has declared again and again since March 2020. The same statutes that have allowed him to assume direct control of the state’s COVID-19 response have also allowed him to declare an “emergency” on the southern border, thereby sidestepping carefully crafted checks on a gubernatorial office that Texan forefathers intended to be one of the weakest in the nation.

While governors — and local county judges and mayors — need special authority to act in the face of fast-moving, deadly crises, such power is poorly suited for ongoing emergencies that can linger for years.

Lawmakers who updated emergency powers laws in 1987 must have known this on some level, as they made a governor’s declaration good for only up to 30 days. What they likely hadn’t anticipated is a crisis that drags on and a governor who would so liberally define “emergency” as to include the influx of migrants at the border, a situation that is already policed by thousands of federal personnel, including armed border agents.

Abbott’s use of emergency powers has shown him a poor steward of such unusual and untrammeled authority. Before he fundamentally reshapes the nature of his office, as prescribed by the Texas Constitution, we call on lawmakers to impose checks on when, how, and how long Abbott — or any governor — may use emergency powers.

Efforts to strengthen the office

In ordinary times, a Texas governor’s power primarily rests on three pillars: bully pulpit, legislative veto and appointing boards to oversee state agencies — all of which are purposefully limited by the state constitution approved in 1876.

Notably, the governor can’t dictate the decisions of his agency appointees — nor can he remove appointees without cause. The governor’s only role in the state’s budget is an after-the-fact, line-item veto. Setting the regular legislative agenda is almost exclusively the purview of the House speaker and lieutenant governor. Even executive authority is parsed out among independently elected officials.

“Our constitution was written in the nineteenth century by people terrified of centralized government,” said Sen. Bill Ratliff, RMount Pleasant, just ahead of the 1999 session of the Texas Legislature, when he introduced a constitutional amendment to consolidate much of the state’s executive authority under the control of the governor. “I believe when the people of Texas vote for a governor they think they are voting for that candidate’s programs and philosophy and platform, but the governor has no real authority to institute those things.”

Ratliff was a widely respected statesman, but that bill never got out of committee.

Nearly 30 years before, Democratic Lt. Gov. Ben Barnes had campaigned for governor in part on a call for a constitutional convention, which he hoped would elevate the powers of Texas’ chief executive. Barnes, who’d also served as House speaker, had come to see the governor as the weak link in a three-person leadership team.

“Ironically, though I lost that race, the call for the constitutional convention succeeded,” Barnes told the editorial board last week. “My plans had been to recommend that we strengthen the office of governor, and in particular its authority in the budget-making process. People have always perceived that the governor ran the state, but the real power — especially the power to write the budget — has rested in the hands of the speaker and the lieutenant governor.”

Alas, the 1974 convention, the only one since 1875, ended up leaving the governor’s powers untouched. So when Lt. Gov. Rick Perry took over for President-elect George W. Bush as governor in 2000, he inherited the same weak office, yet took full advantage of one change Barnes had helped push through in 1972: extending the terms from two years to four of statewide officers, governor included. By the time Perry began his third full term as governor, he had appointed every member of every state commission or board, effectively outlasting a key constitutional restraint on his power: the staggered terms of board members.

Even that didn’t allow him to direct the affairs of state agencies, as Abbott has.

Abuse of power

Texas’ emergency powers laws, as updated in 1987 as part of a broader change to executive branch governance, state that if a governor believes conditions warrant it, he or she may act as commander in chief of each state agency and issue decrees — or executive orders — to dictate operations.

That authority came in handy during the worst months of the pandemic, including when Abbott needed to impose partial shutdowns on businesses. Republicans to Abbott’s right faulted his overreach, and while this board believes Abbott’s orders were needed — they often didn’t go far enough — critics have a point when they ask what checks exist to prevent a governor from declaring a phony emergency and simply seizing and keeping power indefinitely.

Answer: nothing. That is, not until the Legislature next meets and lawmakers band together to exert some oversight, something a few members called for earlier this year — nearly two years after Abbott first issued his emergency declaration. Their efforts were unsuccessful, however, and the Legislature left untouched Abbott’s apparent endless ability to run the state through decree. And that should concern any Texan who believes in limited government.

Border example

Consider Abbott’s use of emergency powers on the border. On what grounds, other than his own political ambitions, did he hang his declaration that the influx of migrants crossing over from Mexico represented a true emergency, requiring extraordinary power? Enforcing federal immigration law isn’t in his job description.

Sending thousands of Texas National Guard troops and DPS officers to the border as part of Operation Lone Star — and the misleading data the state has produced to justify it — has been controversial enough. As they arrested migrants on misdemeanor charges of trespassing, local jails were quickly overwhelmed. Nevertheless, Abbott’s emergency powers have enabled him to sidestep ordinary spending safeguards and avoid the bidding process altogether in awarding contracts.

Chronicle reporters Jay Root and Jasper Scherer revealed this month that as arrests began last summer, the Texas Department of Emergency Management made at least 12 purchases without formal bids to support Operation Lone Star, spending up to $45 million. Tens of millions of dollars in new spending has been approved since then.

“He’s just abusing emergency powers at this point,” said state Rep. Mary González, D-Clint, vice-chair of the House appropriations committee. “When we’re spending this amount of taxpayer dollars, it’s important for us to honor our constituents with transparency and accountability.”

Use of emergency powers violates balance of authority.

The solution

The remedy isn’t to cancel a governor’s ability to tap into special powers during an emergency. It’s to make sure the powers don’t outlast the crisis, or in the case of an extended emergency, to make sure a single office-holder isn’t calling the shots for months or even years without input from the Legislature.

Just when and how that input is given will take some give and take among lawmakers and the governor’s office next session. We believe it’s a vital conversation. The men who wrote Texas’ 1876 constitution were indeed scared of a power-hungry centralized government that was no longer accountable to the people. The behavior of Governor Abbott over the past two years has validated their concerns.