Civil SocietyHealthcareIssuesStatewide NewsWhat is the Legal Footing Behind Governor Abbott’s Coronavirus Executive Order?

The executive order will be in effect at midnight today and will last until April 3, but can be extended if deemed necessary.

The orders instituted are as follows:

1. In accordance with the Guidelines from the President and the CDC, every person in Texas shall avoid social gatherings in groups of more than 10 people. 
2. In accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; provided, however, that the use of drive-thru, pickup, or delivery options is allowed and highly encouraged throughout the limited duration of this executive order. 
3. In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance. 
4. In accordance with the Guidelines from the President and the CDC, schools shall temporarily close.

He is not the first governor to implement such measures during the current coronavirus crisis. 

New York, New Jersey, and Connecticut jointly closed bars and restaurants; Nevada ordered “non-essential” businesses closed for 30 days; California has ordered all residents to stay at home; and Kentucky closed spas, gyms, and other similar businesses.

Compared with these, Abbott’s executive order is far less draconian. But the question still arises regarding the legal footing of his action.

Article 1, Section 28 of the Texas State Constitution states, “No power of suspending laws in this State shall be exercised except by the Legislature.”

Whereas, Chapter 418.016 of the Texas State Code reads:

1. a) “The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

Subsection (f) permits the governor to suspend regulations for registration requirements such as for vehicular and medical-based permits — something he has introduced over the last week.

These disaster powers are part of the “Texas Disaster Act of 1975” and were passed this past session in 2019.

Scott Keller, former solicitor general of Texas, told The Texan, “The governor has been granted broad powers by the legislature under the emergency declaration provision.”

Those powers, Keller states, include using public and private resources and restricting the movement of people when a state of emergency is declared.

Rick Green, an attorney who in the past served in the Texas House and ran for State Supreme Court, agreed, telling The Texan, “From a constitutional perspective, [the governor and the health commissioner] definitely have the power to do what they’re doing.”

“They’re having to make impossible decisions to a problem we haven’t faced in 100 years — and [Abbott’s] taking the most balanced approach I have seen,” Green added. 

Another aspect of the issue Keller pointed to is even if these broad powers exist, could citizens bring claims forward of “takings” of their private property. The Fifth Amendment in the Bill of Rights addresses this head on: “nor shall private property be taken for public use, without just compensation.”

Additionally, Article 1, Section 17, Subsection (a), reads, “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”

Essentially, the potential argument made is that because the government has placed limits on the ability of businesses to operate, those business owners would be due just compensation from the government.

The courts, Keller mentioned, have taken strong stances protecting the government’s physical takings of property — provided the owner is duly compensated — such as the 1896 decision in United States v. Gettysburg Electric Railroad Company.

However, the courts have “interpreted the provision to largely not apply to a regulatory case,” Keller added. In other words, the government is not actually seizing property in this instance, just regulating the period of operations — something it famously does limiting the sale of alcohol on Sundays.

“Courts have largely held that while regulatory takings can be recognized in certain, limited situations, it is a fairly high standard in place for a court to step in and declare a regulation requires just compensation.”

Keller sees this as one possible avenue for business owners to try and rebuke the regulation.

“Those are not depriving the owner of all economic uses of their property,” he added, and that is one of the standards under which courts evaluate their takings assessments. 

Green, meanwhile, stressed his belief that this long-standing precedent set by the courts is wrong and should be undone. 

He believes that at some point the takings clause would apply, but unless it’s drastic, he sees the court deciding “the government’s compelling interest, here, was overwhelming based on what was happening around the world — but time is the determining factor here.”

About the economic implications arising from this, Green added that Abbott’s course of action is far more appropriate than the approach taken in other states — such as the shelter put in place by California Governor Gavin Newsome. 

Austin attorney Tony McDonald took a different view of the executive action.

“In the order, you’ll note the governor does not prescribe any penalty for non-compliance, and I think the reason that’s lacking is because I don’t think there is any question if he has the authority to issue orders to individuals banning their activities, generally.”

Pointing to Chapter 418.016 of the state code, McDonald cited the provision, “The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business.” McDonald contends this subsequent clause pertains to the state itself, not its private citizens.

“If you look at the Texas Bill of Rights, we specifically ban the government from suspending laws — so the question arises whether [the emergency declaration provision] is wholly unconstitutional or whether it’s scope is limited beyond this usage.”

“But I think you can tell that they know what they’re ordering people to do can’t really be backed with any force of law because there’s no penalty,” McDonald underscored.

Green disagreed with this assertion, pointing to the governor’s disaster declaration — specifically the section which reads, “I authorize the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.”

That, Green stressed, gives the local governments the authority to enforce the protocols levied by the state. “If someone tests positive and is told by a state or local health official to stay isolated they need to listen.”

McDonald concurred with the assessment of listening to what health officials are saying despite his reservations about the legal footing for the governor’s actions.

“That’s not to say you question the wisdom of the advice in the order,” McDonald stated — referencing the broad guidance to reduce human-to-human contact in order to prevent the uncontrollable spread of coronavirus.

Partially referring to the “takings” lawsuits Keller mentioned above, McDonald added, “If someone thinks what’s being done is illegal, the question is can citizens do something about it?”

“People think of lawsuits as they go to court and the court is the ‘arbiter of truth,’ which they are not — it’s just a group of people who may or may not do something for you,” he specified.

McDonald sees court action on such takings lawsuits as not very likely. “The courts will probably be pretty deferential. And moreover, you have standing, meaning someone must suffer a particularized injury in order to bring a lawsuit.”

Using the regulation of “margaritas-to-go” sales, McDonald stated he doesn’t see enough injury in such a scenario to warrant standing for a lawsuit. “As a practical matter, a lot of these things will stand because nobody’s negatively affected enough by them.”

Somewhat echoing the concerns McDonald asserted, Green stated, “The tricky part comes with ‘Where is the due process?’” He added that with this situation being, right now, a short-term response, that will minimize the consequences of the regulations of conduct. 

“Right now everyone is trying to close the curtain as quickly as we can (preventing the spread of coronavirus), but at some point we’ve got to start asking this question, how you appeal such things — and I’d like to see that addressed soon,” he added.

On Friday, Governor Abbott approved the emergency designation of small long-term, low-interest small business loans to help businesses make it through what will undoubtedly be a difficult time — something Green said was done to “try and head off that potential problem at the pass.”

However, Green stressed that were this protocol to be extended, that could make the case for restitution of injury the government has caused by its regulations more likely. 

McDonald remains especially concerned over the effective prohibition of certain institution’s practices such as churches caused by the 10-person gathering limit.

“Nevertheless, it’s notable to see no penalty prescribed in the order, and I think there’s no penalty for a reason,” he concluded.

Moving forward, Green added that “From a policy perspective, I’m really nervous about what the government can or should do to prolong the serious economic consequences of this crisis.” 

Keller emphasized the gravity of the situation, “In a time of an emergency, this is an example of the state utilizing its police power — where the federal government is one of enumerated powers and the states have the police power.”

“To protect public health and safety, states can and do have broad authority to take actions such as this,” Keller stressed, “which also includes a check on the governor’s power by the legislature.”

That check, however, would require the legislature to be back in session — something that, while in the interim, the governor has sole control over (i.e. calling a special session). The only other possible recourse is a Supreme Court ruling.

That’s not to say that the legislature would use such a check if it were in session, but that is an important caveat to checks and balances within the state government. 

Green concluded by saying, “After scanning the different statutes from across the country, Texas does seem to have thought through [protocols for this kind of situation] a lot better in terms of its statutory guidelines compared with other states.”

Editor’s Note: This order and the various experts’ comments are about the Governor’s March 19 executive order, not the March 31 order which limited numerous “non-essential” activities and services.