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July 23rd, 2021:

When might SCOTX rule on the line item veto thing?

The short answer to that question is “who knows, when and if they feel like it”. I’m just going to focus on the analysis part of this, because that is what interests me more.

Legally, the case hinges on whether the Texas Constitution allows a governor to cut off funding for an equal branch of government.

Politically, it’s unclear whether the court would be doing Abbott a bigger favor by upholding his veto power, or by extricating him from a stalemate that’s not going his way.

Either way it goes, the case will have broad implications for the future of Texas governance, said Brandon Rottinghaus, a political science professor at the University of Houston.

If the veto is upheld, it strengthens executive power, giving Abbott and future governors a new axe to wield over the Legislature.

“This is well beyond the Schoolhouse Rock version of how government works,” Rottinghaus said, referencing a children’s animated series that simplified political concepts into cartoons. “This is a political story as much as it is an institutional separation of powers story. So it’s going to really push the boundaries of what’s allowable in Texas, especially in its governor.”

And if Abbott’s veto is upheld it would likely deflate the Democrats who fled to Washington D.C, leaving them to shoulder part of the blame if about 2,100 legislative staffers lose their jobs come fall.

“It takes a lot of the wind out of the sails of the Democrats if the courts back the governor in this fight. So that’s really, I think, what they’re waiting for,” he said. “The bottom line is that they can’t keep doing this forever, that the Democrats are going to see that at some point, politically, they’re not getting any more purchase.”

And the court itself could face political repercussions when its members are up for reelection. Courts have not pushed back on executive power for decades, Rottinghaus said. The doctrine of separation of powers has been eroded over the last couple of decades, he says, and if the court takes Abbott’s side, then it’s likely to further blur the line.

“I’m a big believer in separation of powers. I don’t think this is a partisan argument,” Rottinghaus said, saying he wished the whole Legislature, both parties, would “stand up for itself collectively” against the move. “To boil it down, this is basically a question about which power’s more robust, the power of the executive veto or the separation of powers — institutions that have been weakened by political fights.”

[…]

Jeffrey Abramson, a University of Texas at Austin law and government professor, says he believes the veto infringes on the Texas Constitution.

“Like every other state constitution and the U.S. Constitution, the Texas Constitution is based on the fundamental principle that separating government power among three coequal branches of government is the best way to limit the possibility of tyranny,” Abramson said in emailed comments. “Gov. Abbott’s defunding of the Legislature, by vetoing the part of the budget that provides funds for the legislature, is a clear and frightening attack on separation of powers. It is an attempted executive coup.”

It’s unclear when the Texas Supreme Court could rule on the issue — or if it will at all. It could rule any day now, delay a decision or decide the court does not have the jurisdiction over the case at all. The justices could also rule to disallow part of the veto — for example, legislators are allowed a per diem payment under the constitution — or find that the issue is not yet ripe and punt it down the road to decide at another time. Attorneys for House Democrats asked for the court to expedite its decision “well before” the new budget comes into effect.

“If I had to really put money on it, I would say that the court would back the governor’s veto, in part because they might view this as being a temporary political skirmish that can be resolved,” Rottinghaus said.

[…]

If the veto is deemed constitutional, House Democrats warn it will set a dangerous precedent.

“People need to understand that going forward, every governor will be using this power. Every Legislative session will involve a list of demands, [and] it will be explicit or implicit that if the governor doesn’t get this legislation, and then the legislature won’t exist,” said Chad Dunn, attorney for the House Democrats who filed the petition to the Supreme Court, in an interview. “That is dangerous stuff, and it’s got to be remedied immediately.”

The House Democrats also warn the state’s top court: if it happens to us, it could happen to you, too. They argued in court filings that if the governor can defund the Legislative branch, a co-equal branch of government, for going a way he disagrees with, he could then turn around and do the same to the state’s top court.

Abramson agrees.

“Imagine a governor that stripped Texas courts of funding as a way of retaliating against a decision the governor did not like and as a way of pressuring the courts to do his bidding,” he said. “No one would think the governor had such power. But he has done the equivalent to the Legislature.”

Just for the record, I’ve already imagined that. It wasn’t hard at all to imagine. Doesn’t mean that the great legal minds that make up our Supreme Court have imagined it, or are capable of imagining it. But some of us can, and did.

Separation of powers is baked into the state constitution, Rottinghaus said. If Abbott’s veto is upheld, it could throw off the balance completely.

Charles Rhodes, a Texas constitutional law professor at South Texas College of Law Houston, agreed.

“Using the line item veto power as a sword to make the other branches yield to his will, that’s going to totally upset the original foundations of the very strict separation of power scheme that the founding fathers of the Texas Constitution of 1876 envisioned,” Rhodes said.

If the veto is deemed valid, then it will likely cause permanent change to the power structures in Texas, he said.

“Sometimes, Texas is referred to as a weak governor state,” Rhodes said. “But if the governor can start leveraging vetoes to control legislation and to control the courts, then our governor just became one of the most powerful gubernatorial officials of any state.”

I mean, what else is there to say? The state’s arguments in favor of the veto are total weaksauce. This really shouldn’t be a hard question. It’s just a matter of whether the Supreme Court has the guts, and the imagination, to properly address it.

The fourth wave

We’re not ready.

One local hospital is reinstating visitor limits and Harris County Judge Lina Hidalgo is mulling a change to the county’s threat level amid a wave of COVID-19 variant cases that medical leaders warned Tuesday could overwhelm area hospitals and wreak further havoc as schools reopen next month.

The warning came amid massive spikes in hospitalizations across the Houston region, which Hidalgo’s office is closely monitoring to decide if the county needs to raise its emergency threat level from yellow to orange — or moderate to significant.

“We’re watching this very, very closely,” Hidalgo spokesperson Rafael Lemaitre wrote in an email. “The trends are moving in the wrong direction again and we are in a high-stakes race against the delta variant of this virus. Our message to the community is simple and clear: If you haven’t been vaccinated, take action now.”

In May, Hidalgo lowered the threat level from red — where it had been for nearly a year — to orange, then yellow a few weeks later, as COVID cases waned statewide.

But this month, hospitalizations across the state have more than doubled, ballooning from 1,591 on July 1 to 3,319 as of Tuesday, according to the Texas Department of State Health Services. The state’s hospitalization count peaked in January at 14,000.

Texas Medical Center CEO William McKeon said he fears the closing of many testing centers will make it more difficult to gauge the extent of COVID’s spread in the coming weeks.

“As this fourth wave begins in force, our radar is down,” Texas Medical Center CEO William McKeon said in a Tuesday conference call with reporters. “We have only a fraction of the testing…. We’re going to be running much more blind to the spread of delta variant in our community.”

[…]

Memorial-Hermann Health System plans to readopt visitor restrictions this week, and will test all patients for COVID, regardless of their vaccination status, said Dr. Annamaria Macaluso Davidson, vice president of employee health medical operations.

The hospital system had about 100 confirmed COVID cases on July 4; by Tuesday, there were more than 250.

We’ve been discussing this, and you know how I feel. The hospitalization numbers are still relatively low, but that’s a sharp increase, and there’s no reason to think there won’t be more. And I hadn’t even thought about the drastic reduction in testing facilities – I don’t know how big an effect that may have, but it’s not going to help.

I drafted this a couple of days ago, and before I knew it, Judge Hidalgo had already taken action.

Harris County’s emergency threat level was raised to orange — or “significant” — on Thursday and County Judge Lina Hidalgo called for resumed mask wearing amid a fourth wave of COVID-19 that has already caused hospitalizations to spike across the region.

“It’s not too late,” Hidalgo said. “But if we don’t act now, it will be too late for many people…. We are at the beginning of a potentially very dangerous fourth wave of this pandemic.”

The guidelines for the orange threat level are voluntary, and urge residents — namely those who are not vaccinated — to avoid large gatherings and businesses with poor safety procedures.

Hidalgo also said “everyone” should resume wearing masks to protect the County’s population who are not fully vaccinated. Currently, about 2.1 million county residents are fully vaccinated — 44 percent of Harris County’s total population.

She noted the county’s positivity rate is now doubling about every 17 days, quicker than any other point in the pandemic.

Get your masks back on, and hope for the best. I trust Judge Hidalgo to do everything she can to ameliorate this situation, but as we know, there’s not a lot she can do. Greg Abbott has seen to that.

One thing that could help is if more places of business begin putting in their own vaccination requirements, mostly for employees but also possibly for customers or business partners, depending on the situation. Putting some limits on what one can do as an unvaccinated person is one of the few effective ways to compel people to get their shots. That will have to come from the private sector, because it sure won’t come from the state. The FDA giving final approval to the Pfizer and Moderna shots will help, too. I just don’t know how long we can wait.

Another State Bar complaint against Paxton

He certainly deserves all the trouble this has brought him. Whether any of it leads to actual consequences, we’ll have to see.

Best mugshot ever

Four former presidents of the State Bar of Texas joined a group of high-profile lawyers on Wednesday to file an ethics complaint against Texas Attorney General Ken Paxton, a Republican, over his efforts to overturn President Joe Biden’s 2020 election victory against former President Donald Trump.

Paxton filed a widely criticized lawsuit with the Supreme Court in December, in which he sued the battleground states of Georgia, Michigan, Pennsylvania and Wisconsin over what he claimed were “unconstitutional irregularities” in their election processes. The Supreme Court rejected the lawsuit, which came as Trump and his allies repeatedly promoted baseless allegations that the 2020 presidential election was “rigged” or “stolen.”

The organization Lawyers Defending American Democracy, which asserts it is not partisan, filed the lawsuit in connection with 16 prominent Texas attorneys.

“The injunction Mr. Paxton sought with the Supreme Court would have usurped the presidency for the next four years and cast doubt on whether truly democratic presidential elections would ever have been restored in America,” Jim Harrington, one of the complaints signers and a retired founder of the Texas Civil Rights Project, said in a statement published on LDAD’s website.

Harrington said Paxton’s actions “demonstrated his disregard for the ethical rules which govern lawyers and for our country’s democratic principles.”

As you may recall, there’s already such a complaint against Paxton. I don’t know how the State Bar works, but I would assume these two would be combined. Reading that earlier post reminded me that Paxton was supposed to have responded to that complaint within 30 days, and indeed he has responded, asking for the complaint to be dropped – he’s basically saying that the original complainant doesn’t have standing to file against him. As a non-lawyer, I shrug my shoulders as I have no way to evaluate this claim on my own. Those of you who are lawyers, feel free to enlighten us.

Above the Law adds some details.

The bar complaint alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

The complainants point to Paxton’s representation that Biden’s odds of winning the election were less than one in a quadrillion, a gross distortion of a economist Charles Cicchetti’s assertion that this was the probability of Biden winning if the votes before and after 3am were randomly drawn from the population as a whole. Cicchetti’s analysis was ridiculous on its face even before Paxton mangled it — the differential between in-person votes favoring Trump and absentee ballots favoring Biden had been widely predicted. And furthermore, smaller rural areas, which tend to lean Republican, were always going to complete their counting before cities like Philadelphia and Atlanta.

As for misstatements of law, the complainants point to Paxton’s bizarre theory of standing which “flew in the face of the Electors Clause and the bedrock constitutional principle of each State’s sovereignty within our federal system.”

“The standing to sue Mr. Paxton sought from the Supreme Court had no basis in law and would have been a prescription for an autocratic President to perpetuate his power indefinitely against the will of the voters,” said Gershon (Gary) Ratner, co-founder of Lawyers Defending American Democracy and principal author of the complaint.

Here’s the LDAD statement on their complaint, and here’s the complaint itself for your perusal. Note that they had called for Paxton to be sanctioned within a week of his filing that ridiculous lawsuit. I don’t know if it took them this long to prepare their complaint or if there was something else going on, but here we are. I don’t know enough to add anything else at this point, so stay tuned.

Are the college conference dominoes set up for a tumble again?

This would be a big deal.

A decade after major conference realignment shook up college football, big changes might again be on the horizon.

Texas and Oklahoma of the Big 12 have reached out to the Southeastern Conference about joining the powerful league, a high-ranking college official with knowledge of the situation told the Houston Chronicle on Wednesday.

An announcement could come within a couple of weeks concerning the potential addition of UT and OU to the league, the person said, which would give the SEC 16 schools and make it the first national superconference.

“Speculation swirls around collegiate athletics,” UT responded in a statement Wednesday. “We will not address rumors or speculation.”

OU, in its own similar statement, offered: “The college athletics landscape is shifting constantly. We don’t address every anonymous rumor.”

[…]

Another person with knowledge of the schools’ interest in jumping to the SEC said it could be the first step in the long-awaited break between haves and have-nots in the college sports world. Most of those scenarios have involved four superconferences of 16 schools each, but the observer said the eventual winnowing down could result in an NFL-like scenario with as few as 20 to 30 schools in the top tier.

The eventual impact, the second source said, could be the biggest change agent in college sports since the 1984 court decision involving Oklahoma and Georgia that allowed schools to market certain media rights without being limited to conference-only agreements.

“You’re going to see shifts happen like they’ve never happened before,” he added, “but it’s not going to happen for another three years.”

The recent developments in athletics (possible expansion of the college football playoff) and legal circles (players’ ability to profit from their name, image and likeness) are leading Oklahoma and Texas to consider moves based not on regional or competitive ties but on economic forces.

The Big 12’s TV contract with ESPN and Fox expires in 2025. Texas Tech president Lawrence Schovanec said in May that the two networks had declined to discuss extending the contract past 2025.

“The general result is that, at this time, with so much uncertainty in the media marketplace as well as the landscape for collegiate athletics, our partners, ESPN and FOX, are not interested in acting preemptively with regard to our contract,” Schovanec told the Lubbock Avalanche-Journal in late May. “They recognize the importance of our partnership, but there’s just too much uncertainty, and they do have four years to go.”

As colleges face new challenges with name, image and likeness reforms and the recent Supreme Court decision that cast doubt on the NCAA’s beloved “student-athlete” model, the second source said, more powerful schools will seek to protect their economic base by flocking to like-minded superpowers.

“Schools have worked so hard to hide the fact that the collegiate game is nothing but the NFL hiding behind the veil of education,” the second source said. “Sports is mirroring what is happening in the broader context of society. It is not exempt from the same forces that affected K-mart or Blockbuster, who enjoyed success but were not able to change. To survive, you have to be able to change in real time.”

As the story notes, it’s been nine years since Texas A&M and Missouri left the Big XII for the SEC; Nebraska and Colorado also departed the conference, for the Big 10 and the PAC 12, respectively. A&M’s athletic director is quoted in the story as being unfavorable to the idea – basically, A&M got there first and they deserve to have the SEC to themselves – but I doubt that will carry much weight in the end. Money talks, and UT and OU represent a lot of it.

If this happens, and I’m inclined to believe it will, we will wind up with a vastly different college athletics landscape in short order. For one thing, the Big XII will lose pretty much all of its glamour, and may well end up on the outside looking in when that “four 16-team superconference” world comes into existence. (On the plus side, UH might finally get accepted into the Big XII.) As a longtime fan of a school that’s never going to be more than cannon fodder in this world, I’m not interested in the palace intrigue of it all. You have to be able to handle a lot of cognitive dissonance to be a college sports fan. The recent NCAA ruling over “name, image, likeness” rights makes things a little better for the athletes themselves, but this is never going to be an equitable world. You make your peace with it or you find some other thing to occupy your Saturdays in the fall and weekends in March. ESPN and Texas Monthly, which is warming up the death knell for the Big XII, have more.