Since the passage of the order, many Austinites have complied, staying at home except to grab groceries or other supplies — evidenced by the light traffic on the city’s notoriously packed highways.
But some have not. On Tuesday after the order announcement, a crowd of nature-goers congregated in Zilker Park’s Barton Springs.
The order itself bars public and private gatherings of “any number of people occurring outside a single residence.” It has also mandated the closing of any business not deemed “essential” — which has been extended to include most commercial and residential construction.
But across the state, what constitutes “essential” has a broad interpretation and, as the Texas Tribune reported, has created a confusion-inducing gray area.
The City of Austin has compiled a list of over 130 different specific businesses or types of businesses and whether they are “essential” or “non-essential.” While it is not totally comprehensive, it serves as a starting point for residents and business owners.
An official with the Homeland Security and Emergency Management (HSEM) office — which is overseeing the city’s coronavirus response — told The Texan, “We have, as narrowly or clearly as possible, defined what qualifies as ‘essential’ infrastructure or business, and then as questions have come in, our law department has provided further clarification where it’s needed.” That is the process behind the above list.
Austin, and other governments like it, have determined that the only way to stem the spread of the virus is to prevent human-to-human contact.
However, the ramifications that come with such an effort also factor into the equation. Some have become critical of efforts such as these, both on economic and legal grounds.
Rob Henneke, the Texas Public Policy Foundation’s (TPPF) general counsel, has taken a critical approach to Austin’s shelter order. He stated in a post on TPPF’s website, “Austin’s stay home order is both draconian and unenforceable — a combination that undermines not only the effectiveness of a law, but respect for laws overall.”
“While the government does have the ability to restrict civil liberties in times of crisis, that ability still exists within the framework of protecting those rights,” Henneke told The Texan, meaning the limitations need to be “narrowly tailored and least restrictive.”
This is not a standard Henneke thinks the shelter orders meet. “That does not mean these orders are conceptually unconstitutional, but the question arises within that standard,” he said.
Citing the negative effects on businesses these orders have created, he continued, “These orders seem to have a greater negative impact on the local economy than anything the state or federal government has done.”
Between the serious tone taken in the city’s “whereas” clauses of the order and its “therefore” (or, regulatory) clauses, Henneke sees a discrepancy. Pointing to the numerous exceptions, specifically regarding which businesses may remain open, Henneke sees too much gray area for the order to reflect the seriousness the city hoped to convey.
Providing that clarity, the HSEM official stated, is the purpose of the list the city has put together.
“We have these broad provisions and ambiguities wherein anyone can self-identify as ‘essential,’” Henneke underscored, “but the lack of enforcement of the cities own orders as evidenced by the big gathering down at Zilker Park the day of the announcement.”
APD is tasked with enforcing the shelter order, but, the HSEM official stated, “Their main priority right now is educating people on the precautions and encouraging voluntary compliance.”
They further added that the fine and jail time is reserved for repeat offenders.
“As of a week ago, we’ve had overwhelming compliance from the bar and restaurant industry. And as of [the latest available data] there have been no citations issued,” the HSEM official added. They say the newest data should be available in the coming days.
Because of the real consequences facing workers as a result of government-mandated closures, Henneke sees real injury caused to those workers by the government’s lack of enforcement. “If their belief is that the major urban areas in Texas are about to become like Italy, then lock it down.”
The federal government just approved a $2 trillion bill which includes direct payments of $1,200 to workers in light of the job losses caused by the actions addressing the crisis.
Henneke stated that his reasoning for specifically mentioning Austin’s ordinance — as opposed to the broad array of cities and counties to which his criticism applies — is that Austin is both the capital city and its officials often lead the discussion on such policy proposals.
Austin Mayor Steve Adler has asked for state action during this crisis, regarding which Henneke stated, “Sometimes a lack of action is action.”
Abbott has been very deliberate in his approach — not yet implementing a statewide shelter order — and instead opting to let cities and counties decide what’s best for them. In asking for state action, Henneke said the City of Austin is undermining its own position that the urban areas need to take more drastic action.
Overall, Henneke wants the local governments to “Marry together what they see as the threat to the community with a response that addresses the threat in the most narrowly tailored, and limited way possible.”
Bennett Sandlin, executive director of the Texas Municipal League, told The Texan, “Cities with shelter orders are wisely acting to flatten the curve as much as possible, consistent with state and federal leadership and recommendations. If Austin hadn’t canceled South by Southwest, for example, it could now be facing what New Orleans is facing.”
Sandlin also stressed that Governor Abbott’s deferential approach “urging social distancing but respecting stricter local policies strikes a good balance given Texas’ diverse geography and on-the-ground situations.”
The HSEM official concluded, saying, “Overall, what we are asking the community to do is commit to voluntary compliance and take individual responsibility to stop the spread of the virus.”
If those requests are not followed, the city reserves the right to enforce those provisions — violations constitute a misdemeanor and carry an up-to-$1,000 fine or a maximum of 180 days in jail.
As the nationwide “social distancing” guidelines have been extended by President Trump until April 30, businesses must cope with another month of difficult financial times. Officials at all levels are trying to strike the balance between preventing the spread of COVID-19 and allowing commerce to reignite.
Whether or not that balance is being met will continue to be the subject of ample debate.
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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.