Are the Governor's Orders Constitutional??

The various orders issued by the Governor and local officials raise the question of constitutionality under either the U.S. or Texas Constitution.

There are many different opinions given by legal scholars. Here are several excerpts from The Texan.

Texas Governor Greg Abbott took a nearly unprecedented step on Thursday — placing limits on the size of public gatherings, instructing restaurants to institute take-out and delivery only rather than dine-in restaurant options, prohibiting nursing home visitation, and closing all schools.

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.  

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.