Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.
In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.
Abbott’s office did not immediately respond to a request for comment.
Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.
“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.
Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”
Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.
“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”
It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.
All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.