Let’s Not Pretend This is Constitutional

We are several weeks into the crisis caused by the spread of the Chinese Coronavirus and the governmental response. Gov. Greg Abbott and local officials across the state have issued various proclamations aimed at combating the virus.

Some of these proclamations claim to suspend the laws, while others purport to have the force of law, threatening Texans with fines and imprisonment for partaking in basic liberties of assembly and travel.

But are they constitutional?

The proclamations claim to be authorized by the Texas Disaster Act of 1975, codified at Chapter 418 of the Texas Government Code. Section 418.012 states that “executive orders, proclamations, and regulations” issued under that chapter have “the force and effect of law.”

That’s plainly unconstitutional. In a republic, laws are adopted through the legislature; not “proclaimed” by the governor or by local officials. There is no authority to the contrary.

In addition to issuing proclamations masquerading as law, Abbott has purported to suspend various laws pursuant to Tex. Gov. Code § 418.016, which says the governor may suspend “certain laws and rules” in light of a declared disaster. But Article I, Sec 28 of the Texas Bill of Rights states plainly that only the Legislature can suspend laws. That section was even amended after the Civil War to remove the authority of the legislature to delegate its suspension powers.

This issue of suspension of laws was, incidentally, the very first complaint mentioned in the English Bill of Rights of 1689. It seems western peoples have been engaging in this conflict against executive usurpation of law-making power for centuries.

How unconstitutional are the current proclamations? The Constitution is relatively silent on the issue of pandemics (aside from a brief mention empowering the governor to call special sessions of the legislature). But Article III, Sec. 62 of the Texas Constitution specifically provides for continuity of government in the case of an enemy attack. It does allow for temporary suspensions of the regular order. But even in those extreme circumstances, it explicitly says that the Bill of Rights cannot be suspended.

And indeed, Texas’ Bill of Rights in Article I, Sec. 29 specifically states that usurpation of the rights of the citizenry is excepted out of the general powers of government, and such rights shall never be violated.

That means that our state government does not have the power to deprive citizens of life, liberty, property, privileges, or immunities except by due course of law. The citizens have the right to assemble, freedom to worship, and freedom of speech. They even have the right to go to the beach.

No statute can ever purport to empower any official with the power to violate such rights. Such power has been forever “excepted” from the powers of the government.

So, should Texans just ignore these dictates from the governor and local officials?

That’s probably unwise.

First of all, social distancing and quarantining may be well advised in these circumstances. I’m a lawyer—not a doctor or a scientist.

Second, there is a difference between authority and power. Just because these current orders are not authorized doesn’t mean that government agents don’t have the power to fine or imprison citizens for non-compliance.

Third, appealing to the judicial branch is no sure thing, even when one is correct. There are various doctrines, such as standing—the requirement that a person have a particularized injury different than that of everyone else in the community—that regularly work as a bar to judicial relief from unauthorized government action. Moreover, the courts have traditionally been especially poor guardians of liberty in times of crisis. (One need only think of the free speech cases in WWI, the Korematsu internment decision in WWII, or post-Katrina and post-9-11 judicial decisions as chief examples of judicial abdication of duty in crisis).

So, should we be dispirited?

No. This is not the first time in our history that government officials have abused their power.  And it will not be the last.

The situation does, however, serve as a reminder that the constitution is but a document. It is not self-executing. In addition to our duty to support our neighbors in this time of need, we have a job in front of us educating them about principles of liberty and law and order.

We must not pretend these orders are constitutional. We must ensure that our neighbors, and future generations, remember there are limitations on government power. And no virus can change that.