July 9, Dale Carpenter, SMU Dallas Dedman School of Law professor, for a piece that analyzes the constitutionality of Gov. Abbott’s COVID-19 orders. Published in The Houston Chronicle: https://bit.ly/3ecB5Dt
A team of biologists and statisticians at the University of Texas projects that about 4,000 Texans will have died from COVID-19 by the end of July. Nevertheless, Gov. Greg Abbott’s recent ramped-up attempts to limit the spread of the disease have drawn withering criticism and lawsuits from influential Republican activists and some business owners.
They claim Abbott has both overstepped his executive power and infringed on individual liberty by closing bars and mandating face masks in most public places. Sheriffs and local officials in a growing list of counties are refusing to enforce the mask order, in particular, on constitutional grounds. These complaints do not have a solid grounding in American legal tradition or Texas law specifically. . .
By Dale Carpenter
A team of biologists and statisticians at the University of Texas projects that about 4,000 Texans will have died from COVID-19 by the end of July. Nevertheless, Gov. Greg Abbott’s recent ramped-up attempts to limit the spread of the disease have drawn withering criticism and lawsuits from influential Republican activists and some business owners.
They claim Abbott has both overstepped his executive power and infringed on individual liberty by closing bars and mandating face masks in most public places. Sheriffs and local officials in a growing list of counties are refusing to enforce the mask order, in particular, on constitutional grounds. These complaints do not have a solid grounding in American legal tradition or Texas law specifically.
In our constitutional system, state governments have retained the so-called “police power” — the authority to enact reasonable regulations for the protection of public order, safety and health. This general power has been especially critical during epidemics of contagious diseases like smallpox, polio, measles and now COVID-19. It is furthermore not the role of courts to second-guess the necessity or wisdom of these measures.
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In Texas, for almost 50 years a statute known as the Disaster Act has granted the governor unilateral power to declare a “state of disaster.” While such proclamations usually involve natural events like hurricanes and floods, state law specifically defines “disaster” to include epidemics.
Abbott declared a state of disaster for the pandemic beginning on March 13. The legislature can overrule that declaration, but it is not scheduled to meet again until 2021.
Under the Disaster Act (and other laws), the legislature delegated broad power to issue orders that have all the force of law. The governor “is responsible for meeting the dangers to the state and people presented by disasters.” He has discretion to use “all available” state and local resources, and even to “commandeer or use any private property if the governor finds it necessary.” He may control the movement of people in the disaster area; and he may restrict the sale and transportation of items like alcoholic beverages.
In a disaster, the governor becomes “the commander in chief of state agencies, boards, and commissions.” It is as close as Texas can come to a state of war.
The Disaster Act specifies not just the governor’s powers but also each Texan’s obligations: “Each person in this state shall conduct himself and keep and manage his affairs and property in ways that will reasonably assist and will not unreasonably detract from the ability of the state and the public successfully to manage emergencies.”
Seen in this light, Abbott has acted well within his power to deal with COVID-19 by closing bars and requiring masks in public. Indeed, local authorities like Harris County Judge Lina Hidalgo have justifiably pleaded with him to move further and faster.
Going to bars, even when other reasonable precautions like social-distancing are practiced, is among the four most “high risk” COVID-19 activities (along with other large indoor gatherings like concerts, sports stadiums, and megachurch gatherings) identified by the Texas Medical Association, which lauded his move. Among his options for dealing with commercial establishments, closing bars is the least he could do to prevent further spread.
Requiring face coverings in public is among the most effective and least expensive public-health interventions available. Research shows mandatory-mask policies in several states prevented as many as 450,000 infections by May 22. Twenty-one states currently require them in commercial establishments.
At the same time, it is true that the state and federal constitutions limit government power, even in emergencies. “To guard against transgressions,” the state constitution declares, “everything in this ‘Bill of Rights’ . . . shall forever remain inviolate.” The governor could not suspend habeas corpus, abrogate the freedom of speech or completely ban worship services.
But no such inviolate right is infringed by the governor’s order. Even in ordinary times, reasonable commercial regulations serving public interests are permissible. States have long regulated business through food and drug safety laws, no-smoking restrictions and many others. All such laws necessarily limit the freedom to act.
The federal appeals court in Texas recently upheld Abbott’s temporary halt on abortions, even though there is a constitutional right to abortion. The court cited a 115-year-old Supreme Court precedent upholding mandatory vaccinations during a smallpox outbreak.
In ordinary times, requiring a particular clothing embellishment like a face covering would be odd. Yet the state’s recognized authority to forbid nudity in public also impinges a certain freedom. Protecting human life is at least as compelling as preserving public modesty. By November 1, as many as 7,000 lives in Texas could be spared with universal-mask policies.
The imposition on individual liberty of having to wear a face covering around potentially vulnerable individuals is trivial. In times like these, individual rights must be honored, but can rationally be limited by social obligations. Liberty without responsibility is mere license. It is foreign to our constitutional heritage.
Dale Carpenter is a constitutional law professor at SMU Dedman School of Law who specializes in governmental structure and powers and individual rights.