The Two Weeks That Stretched into a Year, Part I

Last week Governor Greg Abbott announced the end to mask mandates and lockdowns in Texas. This is to take effect on Wednesday, March 10, 2020.

We are all cheering, right? Yes and no. Yes, we’re glad for the freedom and movement back toward normal. No, our freedoms should not be dependent on a governor’s say so. If we have inalienable rights, then why does a governor have the power to take them away and restore them at his command?

Again, the Babylon Bee accidentally offers real news.
Image from their Facebook page, March 7, 2021

At one point, last spring, our county judge tried to enforce a mask mandate and several other draconian orders. The governor, to his credit, said that a county could not mandate, but only suggest.

Then—and I’m fuzzy about just when—the governor set a mask mandate for the state and set rules for which businesses could open under what circumstances. Just like our socialist county judge.

By the time we got to the district and state Republican conventions—which for me is about writing the platform—there were many people around the state concerned with this unlimited authority being wielded by our state and local governments. So there were multiple platform planks insisting that we reiterate the limits.

And now, in the legislature, there are multiple bills identifying ways to curtail executive overreach. (SJR 29, HB 311, SB 422, SB 525 and companion bill HB 665, HB 1557, HB 1691, SB 1025, SJR 45)

Meanwhile, there’s this sneaky priority bill being pushed by the governor, HB 3. HB3 doesn't prevent executive overreach; it will set in stone for all time (relatively speaking) the authority to take whatever measures he likes if he ever declares another pandemic emergency—and criminalizes anyone unwilling to go along.

I remember first hearing Governor Abbott speak, at the first Texas State Republican Convention I attended, back in 2004. Every time I heard him speak, I liked him. He understood the principles of the Constitution. And during the Obama years, when he was still the Texas Attorney General, he frequently sued the federal government for its overreach. I was so happy to be able to vote for him as our governor.

That’s why it feels like such a betrayal that he takes this authority on himself, now that he is governor. HB 3 doesn’t prevent executive overreach; it sets it in Stone.

In Sec. 418A.002, which lists the purposes of HB 3, it contradicts itself. Purpose (4) says it is to:

protect and preserve individual liberties guaranteed under the United States Constitution and the Texas Constitution.

Then, just a couple of lines lower, purpose (6) says it is to:

clarify and strengthen the roles of the governor, state agencies, the judicial branch of state government, and local governments in the prevention of, preparation for, response to, and recovery from a pandemic disaster.

You can’t do both; either you preserve our God-given rights under the Constitution, or you take away those rights by "strengthening" the government's power to abridge them.

Not everyone is OK with lifting
the mandate, which I guess is how 
you get bills like HB 3.
Image from Dwayne Stovall.

Several bills are requiring the Governor to call a special session within 30 days of the declaration of a disaster, including a pandemic, to determine whether any disaster restrictions should continue. But this bill grants the governor essentially unlimited time to keep the disaster declaration going—until there’s no longer any threat (hint: the 1918 flu pandemic hasn’t technically ended yet). The bill pretends, but does not do what is required.

In Sec. 418A.053, concerning the governor’s declaration of a state of pandemic disaster, the 30 days limit comes up, but it's sufficiently weakened to be meaningless:

(c)  A state of pandemic disaster may not continue for more than 30 days unless renewed by the governor.  The legislature by law may terminate a state of pandemic disaster at any time. On termination by the legislature, the governor shall issue an executive order ending the state of pandemic disaster.

Here’s the thing: the legislature can’t do anything if it isn’t in session, and only the governor calls a special session. So the governor can theoretically keep renewing the disaster declaration monthly until the next legislative session—a 5-month window every other year, during only 2-3 months of which are bills voted on.

Here’s another very bad thing. In Sec. 418A.104, local election officials can change voting laws to accommodate the pandemic—i.e., suspend laws put in place for voter integrity. All they have to do is write for permission from the Secretary of State, who is given authority under this bill to supersede the legislature at will—just as we saw done in multiple states that still have the cloud of fraud hanging over them, and which is in violation of the US Constitution, clear to anyone who has actually read it. That’s what we want to prevent in Texas, not encourage.

And there’s this force of law thing snuck in there. In Sec. 418A.152 we learn that the governor plans to enforce his reign—and not just his, but any state, local, or interjurisdiction rules—with criminal penalties and fines up to $1,000. This is from a governor who, at the outset claimed he didn’t have authority to mandate things like business closures, mask wearing, or limits on leaving your home or gathering; all he could do was issue recommendations.

For some reason, as we learned that the disease was less deadly than originally thought, and we learned which citizens were most at risk, and we learned best practices for treatment—so that this virus became no more threatening than a bad flu season—the governor “discovered” new executive powers that he feels so strongly about that he will use the full power of criminal law enforcement.

In Sec. 418A.157 concerning education during a pandemic, it offers something I think I might favor. If a school or district doesn’t offer full-time in-person education for a student, that student can use an off-campus instructional program by “an entity other than a school district or open-enrollment charter school.” The student will be counted as attending, and the school will reimburse the off-campus instructional program. This has the potential for introducing some free-market choice into public education—but only with approval, and only in the absence of in-person schooling because of a pandemic. So, maybe this year only, and not signed into law until the end of this school year. So—probably never. 

Also, you don’t need HB 3 to get this little tidbit. Senator Lois Kolkhorst has introduced a bill to allow something similar (SB 481)—a student can attend in-person school in another district when the student’s district doesn’t provide that, and the original district or general funds will have to pay the district providing in-person schooling for that student.

Governor Abbott announcing the end of mandates and lockdowns
Image found in this Buck Sexton story

If you're in Texas you know what to do: contact your state representative and insist on smashing this bill. If there's something we need to do to actually be prepared—like knowing where we're getting PPE supplies, for example—we need a bill limited to doing that. This one is a tyrant's paradise with the added camouflage of being a Republican governor's priority bill. 

What we should have learned from this past year:

·         Don’t trust so-called “experts” with an agenda—and never trust the experts of a single field to set policy that affects all of society.

·         Don’t trust politicians with any power over our God-given rights—even for the duration of an emergency.

·         Don’t worry about one health threat while ignoring all other threats.

·         Trust the Constitution; it works every time it’s tried.  

Since it has been a full year, as of this week, I wanted to look back at what we’ve been through. But this was enough for a day; we’ll do that in Part II.