Let’s Not Pretend This Is Constitutional

[Elderberry]

Texas Scorecard by Tony McDonald April 7, 2020

Blog: Let’s Not Pretend This Is Constitutional

Proclamations from Gov. Abbott and local officials might (or might not) be in our best interest, but let’s not pretend they’re constitutionally authorized.

We are several weeks into the crisis caused by the spread of the Chinese coronavirus and the governmental response. Gov. Greg Abbott and local officials across the state have issued various proclamations aimed at combating the virus.

Some of these proclamations claim to suspend the laws, while others purport to have the force of law, threatening Texans with fines and imprisonment for partaking in basic liberties of assembly and travel.

But are they constitutional?

The proclamations claim to be authorized by the Texas Disaster Act of 1975, codified in Chapter 418 of the Texas Government Code. Section 418.012 states that “executive orders, proclamations, and regulations” issued under that chapter have “the force and effect of law.”

That’s plainly unconstitutional. In a republic, laws are adopted through the legislature—not “proclaimed” by the governor or by local officials. There is no authority to the contrary.

In addition to issuing proclamations masquerading as law, Abbott has purported to suspend various laws pursuant to Tex. Gov. Code § 418.016, which says the governor may suspend “certain laws and rules” in light of a declared disaster. But Article I, Sec. 28 of the Texas Bill of Rights states plainly that only the Legislature can suspend laws. That section was even amended after the Civil War to remove the authority of the legislature to delegate its suspension powers.

More: https://texasscorecard.com/blog/blog-lets-not-pretend-this-is-constitutional/