“[T]he City of Austin is still legally requiring masks in our community, through our health authority rules,” said Councilmember Greg Casar.
In a not-so-veiled shot at Governor Greg Abbott, he added, “If state officials don’t want to do their jobs in this pandemic, then we’ll do it ourselves.”
Last week, Abbott announced the end to the state’s mask mandate and the “reopening of Texas 100 percent,” with some minor stipulations based on hospital region coronavirus bed capacity.
Democrats across the state cried foul after the announcement, likening it to a “death warrant.” And now, the capital city’s governing body sits askance to the loosening of coronavirus restrictions.
The only problem for Casar’s position is that Abbott’s executive order explicitly preempts such a local order.
“This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster,” the state order reads, “but only to the extent that such a local order restricts services allowed by this executive order or allows gatherings restricted by this executive order.”
The conflict poses another instance, in a long Texas lineage, of the battle between state and local authority.
Casar stated further, “This action is both legal and the right thing to do. Cities have independent authority under [Texas] constitution, [and] state law allows cities to create health rules.”
Cities have been given some broad authority over their internal affairs, specifically for things like running day-to-day operations that were long ago overseen by the biennial legislature.
But the authority from which most of the coronavirus-responsive orders are derived is the Texas Disaster Act (TDA) — something that is in the crosshairs of state legislators and other officials. The TDA and its provisions are subject to the governor’s declaration of a disaster. Abbott has at times allowed localities more leeway in responding to the pandemic, but at others has asserted his authority.
And with courts having, thus far, deferred to the governor’s authority during the pandemic, it is not obvious that Casar’s case would pass muster in a court of law — the place this quarrel is all-but-sure to go.
Casar concluded, saying, “If state officials sue Austin, they’ll be going out of their way to harm the health of Texans.”
Abbott’s order precludes neither individuals from wearing masks nor businesses requiring them to gain entry. His office confirmed to The Texan that the Office of the Attorney General is looking into the issue.
Austin’s health commissioner, Mark Escott, stated in a Tuesday council meeting, “My concern is what people will hear is that you don’t have to wear a mask and everything is open 100 percent.”
“That’s the wrong message. The right message is that we have to continue the masking and distancing and hand hygiene,” he added. Escott further stated that the state should wait a few weeks or another month before considering more aggressive reopening measures.
Austin Mayor Steve Adler stated after the governor’s announcement last week, “Despite the governor’s order to rescind the state-wide mask mandate, we must protect each other using science as our guide.”
Certainly not the first time the state and its capital city have butted heads, at the turn of the year Austin issued an order to close bars after 10:30 p.m. on New Year’s Eve. The state sued the city over it which effectively resulted in a stalemate as New Year’s Eve had passed before the Supreme Court of Texas could rule in favor of the state.
With little ability to enforce the masking order, the city is hoping Austinites will receive their message and continue to operate as if nothing changed.
Editor’s Note: This story has been updated to include comment from the governor’s office.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.