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The mask rebellion

Sweet, sweet music to the ears.

The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to [Gov. Greg] Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.

[…]

Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.

“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”

West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.

At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.

Garcia said he hopes Abbott will come around on the local mask mandates.

“Our intention is not to fight the governor, our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let us continue with our work.”

The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.

The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.

In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.

“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said. “There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”

[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.

“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”

[…]

Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.

The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.

“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”

Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.

Obviously, I am delighted by the resistance to Abbott’s shameful demagoguery on this issue. Abbott, who has made a career out of defying federal laws and directives he doesn’t like, deserves no sympathy for any of this. I don’t know what the Supreme Court will do, though their refusal to just call an end to all the litigation is moderately heartening, and I appreciate the legal analysis in this story. There’s at least a chance that common sense can prevail, and that’s more than we’ve had around here in awhile.

I will say, it’s been this kind of resistance to Abbott’s anti-mask mandate, which as noted has come from some red areas as well as the cities, that makes me give some credence to that Spectrum/Ipsos poll. Abbott may only care about the most fervid of Republican primary voters, but mayors and school boards have to answer to a broader electorate, and some of them will be facing that music this year. Maybe one of the HISD Trustee candidates, especially one in a district formerly held by a Republican, will base their campaign on an anti-mask platform, but if so I haven’t seen any evidence of it yet. If nothing else, this is a big campaign issue for next year, when we finally get a candidate for Governor out there.

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18 Comments

  1. Kibitzer Curiae says:

    It’s About the Construction (of the Texas Disaster Act) Primarily

    “The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.”

    COMMENT: Standing or lack thereof is an attribute of the litigant, not of the court. The court may conclude that it lacks jurisdiction, or that its jurisdiction should not be exercised for “prudential” reasons, but that’s not the same as standing. Jurisdiction is the power to decide. In the absence of jurisdiction, the court can’t reach the merits of the issues raised in the case. The appropriate disposition is then dismissal. Lack of standing on the part of the plaintiff/petitioner/relator provides a basis for a jurisdictional dismissal, but it is not the only one.

    “In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

    COMMENT: That’s the wording straight from the statute, but it’s only one limitation. Another argument is that some local orders cannot be suspended because they aren’t regulatory statutes that are subject to suspension under the Disaster Act. Cities and school districts make that argument, pointing the the Health and Safety Code and the Texas Education Code, respectively. In the Dallas case, by contrast, the primary legal dispute concerns the powers of the County Judge as emergency manager at the local level (based on the declaration of a local disaster) when the Governor has also declared a statewide disaster. In short, whether the Governor’s order trumps the local order when both orders are based on Disaster Act authority and are incompatible.

    “[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.”

    COMMENT: It’s primarily a dispute over statutory construction (interpretation), according to the lawyers for the litigants. In the SCOTX case from Dallas (Tex. 21-0686), no constitutional arguments are made at all. In the case brought by San Antonio and Bexar County, they argue in the alternative — as a fallback — that IF the statute in question (Texas Disaster Act) allows the Governor to do what he is doing with GA-38, then the statute itself is unconstitutional under the separations of powers article and the suspension clause, which reserves to the Lege the power to suspend laws. TEX. CONST. art. 1, § 28 (No power of suspending laws in this State shall be exercised except by the Legislature). Harris County has added an additional constitutional argument in its petition, and moved to enjoin AG Paxton in addition to Governor Abbott.

    Constitutional issues need not be reached if the Governor’s mask mandate ban is found to be an “ultra vires” act, i.e. if courts conclude that he went beyond what he was authorized to do under the Disaster Act when he promulgated GA-38. Note that the cases being litigated focus on the mask-mandate ban rather than on GA-38 in its entirety. Same unsurprisingly goes for the TROs/TOs granted by trial courts. They enjoin enforcement of the relevant portion of GA-38 while the litigation remains pending. These orders do NOT finally resolve the question of legal validity of the Governor’s order or its voidness.

    “Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.”

    COMMENT: He has in fact already done so, or purports to have done so. Indeed, there is a catch-all provision in GA-38 purporting to suspend any law – including laws not specifically mentioned — that stand in the way of the Governor having his way on the mask mandate issue statewide.

    Therefore, the question for the courts is whether his suspension power reaches that far. For the school districts that challenged him in what became Tex 21-0701 the answer is clearly NO based on the express language of the Disaster Act that limits the suspension to regulatory laws and state agency rules that hinder the disaster response. Again, there are multiple statutory limitations on the use of the suspension power by the Governor. Any one limitation could be sufficient for courts to nix the Governor’s order as it pertains to local mask mandates.

    But the Supremes chose to take a raincheck. So we shall have to wait and see what happens next.

  2. SocraticGadfly says:

    Abbott in GA-38 basically said he was declaring a statewide “anti-emergency.” That’s what this all boils down to legally, IMO, and how attorneys for the cities, counties and ISDs should frame their argument — Abbott has no power to declare an “anti-emergency.”

  3. Oh, rumor also has it that Strangeabbott (think about it, think about it, folks) jumped line and got himself a booster (and still got COVID) in contravention of rules, but is stonewalling comment on that.

  4. Jason Hochman says:

    Abbott is now testing negative, and he was only outdone by the Ohio governor, D. Wine, who tested positive, didn’t want to stay at home alone, got tested a few hours later, and was negative.

    We must stand with our governor. You folks idolized governors like Cuomo, no a destranged, deranged, discredited me too resignation. You thought Gavin Newsome was a fresh slice of bread, but now he is getting recalled.

    Our state is fortunate to have a governor, who while having made some missteps, is actually not a phony propped up by the hate based media, which it seems that most of you believe to be some sort of gospel. Nobody has said you can’t wear a mask to school, or wherever you want. We just don’t need corrupt county judges who give contracts to the Democrat machine to have the power to decree such.

    I was working in my lab yesterday, looked at the CDC, over 40,000 children under age 12 had died since 2020, and something like 200 of those were attributed to COVID. It is not likely that your child will go to school, get sick and die. More likely that your child will be crashed to death on the way to school. If you got your child a vaccine, that is a great risk. There have been something like 5,000 deaths attributed to the vaccines. This is more than all vaccines combined in history. Just some perspective before you get a bad case of Trump derangement.

  5. policywonqueria says:

    FOSTERING CHILD MORTALITY CONFUSION

    Hochman: And how exactly do school mask mandates – assuming they are imposed by ISDs by local option and are actually complied with by children and staff — cause bad reactions to vaccines?

    How do children die of COVID vaccines when they have not been cleared to receive them?

    And as of the overall purported body count of 5,000. No source. No reference to the relevant population figures (world population?) or the time frame.

    Hochman lapse of logic slightly short of Abbottian Derangement Syndrom?

  6. Jason Hochman says:

    Masks don’t cause bad reactions to vaccines. Children (teens) have died of Covid vaccines. There are some cases you can see in VAERS. The point here is that vaccinating your teen is just as risky as going to school without a mask on everyone in the school.

    The deaths from vaccination is now close to 7,000:
    https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html

    This is a very small percentage of the total vaccinated, but it is unprecedented that the vaccinations would continue with that many deaths. Gerald Ford stopped his mass vaccination campaign after maybe 200 deaths, and many case of Guillain-Barre. I remember because elderly people were dying in Pittsburgh. Johnny Carson joked, “name a cure for which there is no disease?”

    All you have to do is wear your mask if you feel it is needed in the situation. No need for a mandate. You MUST educate yourself and not buy into the dystopian Newspeak of the hate based media. For example, they have titled this post “The Mask Rebellion.” Since when did rebels fight to have rules imposed on them by a master? This would be like if the slaves on a plantation rebelled and said “we aren’t getting whipped enough.” Wear a mask if you want. There’s no law against it. Tell your kids to wear a mask to school. Tell the teacher that you want him or her to make sure that your kids keep their masks on at school or they can be paddled.

  7. Bill Daniels says:

    Wolf,

    The basic issue here is, the cure can’t be worse than the disease. Heck, I probably could have, and may indeed have wrote that exact thing a year and a half ago. It’s still true today.

    You’ve offered up the Trump injections to all who want them. Oddly enough, you’ve done your best to prevent people from obtaining inexpensive, safe, and well vetted drugs that have shown to have at least some efficacy at keeping infected out of the hospital. And at this point, you’re trying to change our whole way of life….and you wonder why you’re receiving push back. Look at what’s happening in Australia. People have literally had enough. At some point, even lazy America will be there, too.

    America is all about Freedom of Choice, and I’m not just referring to the Devo album of the same name.

    Jason,

    Absolutely agree. This theater of the absurd is like the slaves of old DEMANDING they be put into their obedience collars and whipped even harder, while vilifying the plantation owner standing on the porch, just shaking his head and asking, “WTF is wrong with these people?”

  8. Bill Daniels says:

    I mentioned Australia because of the massive street protests against lock downs, but then there’s this, too:

    https://www.smh.com.au/national/nsw/rescue-dogs-shot-dead-by-nsw-council-due-to-covid-19-restrictions-20210821-p58ksh.html

    People in charge, people with power, chose to gun down captive dogs that had somewhere to go, had people who willingly agreed to take them in and take care of them. They weren’t going to be useless wards of the state. I know we kill millions of dogs and cats here, for a number of reasons, both convenient and inconvenient, but we don’t kill dogs that have humans who will take care of them. That’s a whole level of depravity that even liberals should be outraged about. Hell, ESPECIALLY liberals, since they’re often the childless “pet parents.”

    Cure. Worse. Than. Disease.

  9. Ross says:

    Bill, give up on the ivermectin/HCQ bullshit. Neither of them is considered safe or effective against Covid, despite your plaintive mewlings to the contrary. Both of them also kill people.

    The chances of dying from the vaccine are at least 100 times lower than dying from the disease. I’ll take those odds, and already have. I also suspect the number of vaccine deaths is greatly inflated.

  10. C.L. says:

    Dr. Hochman, if you worked for me I would have fired you long ago.

    Re: “The deaths from vaccination is now close to 7,000.” Then you provided a link to a CDC finding….but that’s now what the CDC said at all.

    What they actually said was: “Reports of death after COVID-19 vaccination are rare. More than 357 million doses of COVID-19 vaccines were administered in the United States from December 14, 2020, through August 16, 2021. During this time, VAERS received 6,789 reports of death (0.0019%) among people who received a COVID-19 vaccine. FDA requires healthcare providers to report any death after COVID-19 vaccination to VAERS, even if it’s unclear whether the vaccine was the cause. Reports of adverse events to VAERS following vaccination, including deaths, do not necessarily mean that a vaccine caused a health problem.”

    Umm… that last line was quite the kicker.

  11. Manny says:

    Did C.L. catch Jason fibbing again?

  12. Jason Hochman says:

    C.L. that’s like saying that the COVID deaths were over counted. Just because someone with lung cancer or a laundry list of comorbidities died after testing positive for COVID, doesn’t mean that they died from it…but the CDC counted them anyway.

  13. Bill Daniels says:

    Ross,

    I disagree with your assessments of those drugs, but OK, let’s just take your word for it. I. Don’t. Care.

    I’ll take my chances with them, and how in the heck does it hurt YOU if I take drugs that millions world wide have taken with no problem. At the bare minimum, I’ll get some kind of placebo effect. They aren’t narcotics. I’m not going to get stoned on Ivermectin and crash into your family of 5, killing all of you.

    Other countries who aren’t in bed with Big Pharma, like India, with its teeming masses of unwashed poor, hand this stuff out prophylactically AND as a treatment.

    https://covid19criticalcare.com/

    And since we see so much ‘breakthrough infection’ AKA injection failure, don’t you think it would be nice for American docs to have something to give out besides best wishes, when people first develop symptoms? Currently, the strategy is basically, go home, wait until you REALLY feel like shit and can’t breathe, then come and see us in the ER. Why wouldn’t we allow people to try treatment early on to keep them from ending up in the ER?

  14. […] ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck […]

  15. C.L. says:

    Two wrongs don’t make a right, Dr. Hochman.

  16. Manny says:

    Regeneron is supposed to be free, why isn’t Texas telling hospitals to administer?

    https://www.washingtonpost.com/health/covid-monoclonal-abbott/2021/08/19/a39a0b5e-0029-11ec-a664-4f6de3e17ff0_story.html

  17. Bill Daniels says:

    Manny,

    Good question, good article, and thanks for posting.

  18. Manny says:

    Bill, I posed it as a question but the answer is that the state does not want to pay.

    Republican death squads at work.