GOP activist, state lawmaker argue Gov. Abbott’s COVID-19 orders are unconstitutional
A conservative activist and Republican state lawmaker have argued that Gov. Greg Abbott’s executive orders issued amid the novel coronavirus’ outbreak are unconstitutional and have asked the Texas Supreme Court to strike down the law that was used as the basis for issuing them.
In an emergency petition filed Friday, Steven Hotze, a Houston GOP activist, Rep. Bill Zedler, a Republican from Arlington, and pastors and business owners argued that Chapter 418 of the Texas Government Code is unconstitutional, and that Abbott’s executive orders violate provisions of the Texas Constitution’s Bill of Rights.
“Abbott’s Executive Orders seek to determine which people, services, and groups are essential and which are non-essential based on vague or arbitrary criteria, that have no rational relationship to the governmental interest of stopping the spread of COVID-19,” the petition reads. “Such authority to make or alter constitutional rights and/or create legislation is the province of the legislature and the people, not a unilateral decision by one person, Abbott.”
Rep. Kyle Biedermann, a Republican from Fredericksburg, was also named on the petition. However, his office said Friday that he did not give approval for his name to be used. Zedler confirmed Friday that he is a plaintiff in the case.
In a statement Friday afternoon, Marc Rylander, a spokesman for the Attorney General’s Office, said the office is currently reviewing the petition.
“With regard to the executive orders issued during the COVID-19 disaster, the Governor acted pursuant to the authority expressly granted him by the Texas Legislature and in accordance with the Constitution,” Rylander said.
A spokesman for the governor did not immediately respond to a request for comment Friday.
The emergency petition is one of a growing number of challenges Abbott has faced from conservatives calling for less restrictions and more reopenings.
In April, Zedler was among nine members of the tea-party aligned Texas House Freedom Caucus that called on Abbott to loosen his executive order “to the greatest extent possible” to allow Texans to return to work and restart the economy. Abbott has faced mounting pressure from conservative groups since then, with some business owners and conservative lawmakers defying his restrictions.
Hotze has previously filed lawsuits challenging Harris County’s restrictions on religious services and requirements to wear face masks, and was joined by Houston-area pastors in a separate lawsuit in Travis County District Court against Abbott and Attorney General Ken Paxton challenging the state’s previous executive orders related to religious services.
Abbott first declared a state of disaster due to the pandemic on March 13, and has since renewed it multiple times. Chapter 418 of the Texas Government Code allows the governor to declare a state of disaster by executive order or proclamation, and authorizes a wide breadth of responses, such as reallocating state resources and waiving state laws that hinder agencies’ abilities to respond to the pandemic.
However, lawmakers and activists challenging the state argue that Abbott’s actions have “undercut the authority of the Texas Legislature.”
The petition argues that under the Texas Constitution and separation of branches of government, the Legislature has the sole authority to “make, alter, suspend, and repeal laws” — and that it has not ceded that authority to Abbott.
What’s more, Abbott could have convened the Texas Legislature to allow lawmakers to craft legislation to respond to the pandemic, the petition claims, and notes that under extraordinary circumstances, the Texas Constitution allows for the Legislature to be convened at a location other than the Capitol “in case of the prevalence of disease threat.”
“Shockingly, after almost three months, Abbott has not convened the legislature to address legislation related to ‘extraordinary occasions’ surrounding the COVID-19 pandemic,” the petition reads. “Instead, Abbott continues to issue executive orders that suspend laws and infringe on the Constitutional liberties of Texans and further destroy the Texas economy.”
The petition also argues that Abbott’s numerous executive orders are unconstitutional and arbitrarily decide which groups and businesses are essential versus nonessential.
Workers providing services deemed essential by the state have been exempt from some of the restrictions imposed in earlier executive orders, and additional nonessential businesses have been allowed to reopen their businesses at a limited capacity in waves.
But this method has created “winners and losers” the petition argues, and questions why certain thresholds were chosen, such as limiting social gatherings to 10 people or capping some businesses’ capacity at 25%, and why some sets of businesses were allowed to reopen before others.
The petition argues that Abbott’s orders were based on assumptions that businesses are “virus incubators” and that “each citizen is a threat to their fellow Texan.”
Abbott had allowed his statewide stay-at-home order to expire at the end of April, and permitted restaurants, movie theaters and more to start to reopen to customers at 25% capacity under his phased reopening of Texas businesses. He has since allowed bars, tattoo studios and more to also reopen their doors.
Earlier this week, Abbott expanded upon the list of businesses allowed to reopen, permitting water parks, recreational sports, driver education programs and food courts to soon resume.
This story was originally published May 29, 2020 at 2:02 PM.
