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November 11th, 2021:

We wait on the Fifth Circuit

They have received briefs and held a hearing about whether to keep or lift their hold on the Biden COVID vaccine mandate for employers.

A coalition of businesses argued in federal court Tuesday that they would suffer “irreparable harm” if the court fails to permanently halt the Biden administration’s Covid-19 vaccine-or-test mandate for large businesses as the legal challenges make their way through the courts.

Several staffing companies, religious employers and other businesses said in a court filing that the Fifth Circuit Court of Appeals should permanently block the standard “to protect Americans from being coerced to comply with the unconstitutional vaccine mandate during the pendency of this litigation,” after the court issued a temporary stay last weekend.

The Fifth Circuit challenge, led by Texas, is just one of at least a dozen lawsuits filed against the mandate by mostly Republican governors, conservative organizations and business groups, who say the mandate is an unconstitutional overreach of power by the federal Occupational Safety and Health Administration.

Comparing the vaccine-or-test mandate to the Biden administration’s eviction moratorium, business groups suing over the vaccine rule pointed to the Supreme Court’s decision in August to knock down the eviction ban. Then, the high court found in the case of the eviction moratorium, that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends” and that Congress must specifically authorize such policies.

“Just a few months ago, the Supreme Court explained that the Centers for Disease Control and Prevention (CDC) could not unilaterally grant itself control of the nation’s housing market,” the business groups wrote in a Tuesday court filing. “Sweeping authority must come, if at all, from Congress.”

The emergency rules released by the Department of Labor last week require private businesses with more than 100 employees to ensure their workers are vaccinated or have them submit to weekly testing by Jan. 4.

The Biden administration said in a court filing Monday that the mandate was well within OSHA’s authority and that a permanent stay “would likely cost dozens or even hundreds of lives per day.”

Attorneys for OSHA and the Labor Department told a panel of judges for the New Orleans-based Fifth Circuit Monday that the legal argument lodged by states and businesses conflicts with earlier court rulings and federal law, and is unlikely to succeed.

They also said businesses and states challenging the rule don’t have the grounds for “emergency” relief because the effects of the mandate won’t be in place for another month.

See here for the background. I find it best for my sanity to always expect the worst from the Fifth Circuit, so I’m just going to take some deep breaths and try to think about other things. You night appreciate this Twitter thread from Raffi Melkonian about the arguments some of the companies that oppose the Biden mandate are making, and this Twitter thread from Karen Vladeck about the procedural aspects of this case. I’ll have more when the court says something.

Let’s have us a book burning!

That’s where we’re headed.

Greg Abbott in the 80s

Gov. Greg Abbott told the Texas Education Agency on Wednesday to investigate criminal activity related to “the availability of pornography” in public schools, saying that the agency should refer such instances “for prosecution to the fullest extent of the law.”

It’s unclear why Abbott tasked the TEA to perform the investigation and not the state’s policing arm. The TEA does not employ law enforcement officers, according to state statute, and a spokesperson for the Texas Commission on Law Enforcement confirmed Wednesday that the education agency does not have any licensed peace officers.

Abbott’s request comes two days after he asked the agency, along with the Texas State Library and Archives Commission and the State Board of Education, to develop statewide standards preventing “obscene content in Texas public schools.

“While those standards are developed, Abbott wrote to the TEA in his letter Wednesday, “more immediate action is needed to protect Texas students” against that inappropriate content, which he said is “a clear violation” of state law.

[…]

Any civilian can also go to a prosecutor directly to provide what they consider evidence of a crime, but in most instances the prosecutors would then refer the case to a law enforcement agency to investigate independently before pursuing any legal action, according to Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

As for who could be prosecuted under the investigation that Abbott requested, Edmonds said it depends.

Under the state’s penal code, a person commits a crime if they knowingly exhibit or distribute harmful material to a minor, or display it in a reckless way where a minor is present. Harmful sexual material is defined as “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors.” Most violations under that statute are a Class A misdemeanor, which can result in up to a year in jail and a fine of up to $4,000.

However, the penal code also states that a defense against prosecution is that the material was exhibited by a person “having scientific, educational, governmental, or other similar justification.”

“That’s going to be where the battle may be,” Edmonds said.

You will, I’m sure, be shocked to learn that the two books Abbott initially complained about both had LGBTQ themes and content. It’s just a matter of time before Ken Paxton launches a full-fledged investigation into library crimes, as one of the idiot Republican legislators from Tarrant County is asking for; Paxton has some catching up to do on this front, and you know he never misses a chance to run in front of a parade. And if you think I’m going overboard with the title of this post, well, you have some catching up to do, too. Now please, give me your hottest take about “cancel culture”. I can’t wait to hear it.

(The Bloom County strip embedded above can be seen in full, with a bit of historical context, here.)

Special election set for District G

Our first election of 2022.

Greg Travis

The special election to fill west Houston’s District G seat on City Council will be Tuesday, Jan. 25.

City Council voted unanimously Wednesday to call the election. Candidates interested in the position have until Dec. 16 to file for a place on the ballot.

Councilmember Greg Travis, who currently holds the post, resigned last month to run for a seat in the Texas House of Representatives.

“I’m going to miss you all,” Travis told his colleagues after the vote. He will remain on council until his successor is sworn in.

Several people already have signaled interest privately in running, although it is not clear whether anyone plans to file to run for the seat Wednesday. If no candidate wins more than half the vote in the Jan. 25 contest, the election would require a runoff.

[…]

Special elections for council seats typically are low-turnout affairs. The previous two contests — in 2018 and 2020 — attracted between 5 and 7 percent of eligible voters.

See here for the background. Obviously, someone is going to file for the seat. I presume the story meant that it wasn’t clear whether or when any of the “signaling interest” candidates will file. This is a Republican district and there’s no reason to think the next Council member will be anything but a Republican. It’s more a matter of whether they’ll be in the performative grievance class that is now the GOP mainstream or if they’ll be in the old school bidness-friendly group. The latter would be refreshing these days. The filing deadline here is basically what it is for the primaries, so we’ll know in about five weeks who’s doing what.

Texas blog roundup for the week of November 8

The Texas Progressive Alliance is in the best shape of its life heading into candidate filing season as it brings you this week’s roundup.

(more…)

Maybe there won’t be another freeze this winter

Views differ.

Love it or hate it — winter looks especially warm in Texas this year.

Federal forecasters at the National Oceanic and Atmospheric Administration’s Climate Prediction Center said last week that much of the country is likely to see warmer than average conditions this winter, including Texas, thanks to La Niña.

It’s the second winter in a row that La Niña climate conditions — a natural cooling of sea water in the tropical Pacific Ocean — have emerged. The climate pattern affects the position of the jet stream and thus the weather across all of North America.

The outlook, which extends from December 2021 through February 2022, leans toward above normal temperatures for Texas.

Keith White, a meteorologist for the National Weather Service, told the Express-News that Texas should expect similar temperatures to last year before Winter Storm Uri brought plummeting temperatures and snowfall.

A Farmer’s Almanac forecast released in August predicted frigid temperatures and another winter storm.

“We’re still anticipating some cooler and wetter-than-normal weather,” White said. “But something like the storm we saw last year would be unlikely.”

See here for the opposing prediction. Sure, another freeze like last year is unlikely – we’ve only had a couple like it in the last 30 years. But climate change is real, and our grid remains rickety, so better safe than sorry. Be prepared, and hope for the best.