Originally published by Texas Lawyer
Since its ratification in 1876, the Texas Constitution outlines the structure and functions of the Lone Star state government. For over 144 tumultuous years, the document has endured over 666 amendments, of which 73 percent were approved, signaling a commitment to civic duty in Texas and openness to change through democratic processes. Despite the numerous and ongoing proposals, amendments, additions and retractions, nowhere in the text of the Texas Constitution does it designate its applicability as “conditional” or “unless inconvenient”.
In the year 2020, the Texas Constitution still holds true despite the recent and devastating onset of a disastrous global pandemic which has resulted in millions of hospitalizations worldwide and claimed hundreds of thousands of lives. While the pandemic has tested the strength of emergency contingency plans and medical infrastructure around the state, under no circumstance should it test the applicability or pertinence of the Texas State Constitution to its citizens, and more specifically, its allocation of rights of due process, equal protection and right to assembly.
In late May, there was an emergency petition filed to the Texas Supreme Court regarding the governor’s ability to issue executive orders during a health emergency. Four justices alleged that some of the measures put into place were dangerously “draconian” and together, they reaffirmed the fact that in light of no circumstance can the rights and liberties granted within the Texas Constitution be suspended or invalid. They specifically acknowledged the fact that public health has been and can further be used as a means to justify the closure of economic sectors and places of congregation as well as a baseline to detain and arrest hardworking citizens who disobey these unconstitutional measures. If the deliberate constitutional overreach continues amid the COVID-19 pandemic, the justices stated their willingness to intervene in defense of the fundamental rights of citizens as granted through the state constitution.
In response to another executive order issued by Texas Governor Greg Abbott, over 30 bar owners and members of the Texas Bar and Nightclub Alliance filed a lawsuit challenging Gov. Abbott’s authority and second executive order to shut down and impose restrictions on food and beverage establishments across the state. The plaintiffs are seeking damages totaling $10 million of lost revenue due to the shutdowns, in addition to specifications placed on future executive orders, including condition stipulations and clear timelines for which they are valid. Together, the bar owners believe the powers granted and actions taken amid the pandemic signify an abuse of power without proper legal standing, especially in the permissions granted through classifying some businesses as “essential” and others as “non-essential”.
The negative externalities of such orders have already wreaked havoc on the Texan economy. The petition by the Texas Supreme Court and the collective lawsuit by bar and restaurant owners should come as no surprise, as the status quo has been seriously upended during the public health emergency. Without a doubt, measures granted during this crisis have infringed upon the rights of many businesses. The classification of “nonessential” may align with a legal definition and in the eyes of some- but for the hardworking Texans that have poured their heart and soul into their businesses, this classification directly affects their livelihood. These consequences will continue to play out for the next weeks, months and years to come. Further executive power targeting some businesses and not others could even set more dooming protocols that could be applied to other sectors of the economy in the future.
Arguably, the governor’s decision was motivated by the declaration of a public health emergency and issued as a way to further protect patrons and citizens alike from the spread of the deadly coronavirus, COVID-19. Although the pandemic represents an extraordinary occasion, there are key differences between mandates and recommendations that are applicable to citizens. Allowing executive power to reign supreme and unchallenged, especially when it is delivered outside its legal authority is unconstitutional and infringes on rights and liberties of all Texans. As stated in the petition filed to the Texas Supreme Court, the extent of executive orders made during the pandemic have violated specific clauses in the Texas Constitution, especially in the suspension of laws enacted by the state legislature, who are politicians elected by Texas voters to represent them in the state government.
There are other monumental cases that have escalated the tiers of the judicial system that challenged executive authority in times of emergency, such as that during Hurricane Katrina, a category 5 hurricane that swept through the American South in the summer of 2005. A federal district court upheld constitutional rights of movement and mobility despite executive orders and restrictions when citizens of Gulf Coast states were ordered to evacuate and leave their homes. Although the COVID-19 pandemic threatens public health in a different way than Hurricane Katrina, the fact that the pandemic is international in scope does not warrant an exception to upholding Constitutional rights for all. It goes without saying that rights and liberties are applicable at all times and under all circumstances.
Even though emergency measures are corroborated and positioned as a collective effort to protect the health of citizens, that does not mean that all executive orders are unjust or unnecessary. In fact, there are many ways in which governments can target and effectively implement contingency plans to further stop the spread of the deadly coronavirus. In reality, the government, not citizens exercising their granted civil liberties should be responsible in bearing the implied burden of restriction amid the outbreak. Moreover, it would be difficult for the government to justify to the highest state courts their suspension of civil liberties and demonstrate without a reasonable doubt that they were necessary to address the threat at hand. The court has the explicit duty to examine the record and to acknowledge the legitimacy of executive power and likewise, should be bound to hold them accountable.
While many believe that the state of emergency justifies extra-constitutional policies, mandates and orders, no executive power can reign supreme. The core function of government is to ensure and protect the freedoms and civil liberties issued to its citizens. There is no exception, even in times of emergency.
Brett Cain is a trial lawyer who has tried over 50 jury trials and has resolved hundreds more disputes by mediation since 2006. He is the owner of Texas Law Center, a partner of The Law Center, a national network of top law firms with decades of experience in advocating for those who have suffered from personal injury, asbestos-related diseases, motor vehicle accidents and more. Cain is proud to stand up for those who cannot stand for themselves, and, as a result, has recovered millions of dollars for clients after insurance companies initially wouldn’t pay.