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Ken Paxton

Paxton accused of violating open records law

Put it on his tab.

Best mugshot ever

The Travis County district attorney has determined that Attorney General Ken Paxton violated the state’s open records law by not turning over his communications from last January, when he appeared at the pro-Trump rally that preceded the attack on the U.S. Capitol.

The district attorney gave Paxton four days to remedy the issue or face a lawsuit. The probe was prompted by a complaint filed by top editors at several of the state’s largest newspapers: the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News.

In a letter hand delivered to Paxton on Thursday, the head of the district attorney’s public integrity unit said her investigation showed the attorney general’s office broke state law by withholding or failing to retain his own communications that should be subject to public release.

“After a thorough review of the complaint, the (district attorney’s) office has determined that Paxton and (his office) violated Chapter 552 of the Texas Government Code,” wrote Jackie Wood, director of the district attorney’s public integrity and complex crimes unit, referring to the open records statute.

The district attorney’s office will take Paxton and his agency to court if they do not “cure this violation” within four days, Wood warned. For open-records complaints against state agencies, the law says the Travis County district attorney or the attorney general must handle them. The newspapers filed the complaint with the district attorney.

[…]

Jim Hemphill, the immediate past president of the Freedom of Information Foundation of Texas, said Paxton may take issue with the DA’s investigations — or he could voluntarily choose to release this and other records to the public.

“It’s a rare occurrence where a requestor actually has tangible evidence,” Hemphill said. “It will be interesting to see how the attorney general responds to this.”

The Texas Public Information Act guarantees the public’s right to government records, even if those records are stored on personal devices or public officials’ online accounts. The attorney general’s office enforces this law, determining which records are public and which are private.

On March 25, six news outlets jointly published a story that raised questions about whether Paxton was breaking open records laws.

On Jan. 4, five newspaper editors filed a complaint asking the district attorney to investigate the alleged violations. Anyone can file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Public Information Act.

Wood’s notice to Paxton said the district attorney’s office concurred with the allegations in the editors’ complaint.

First, the editors raised concerns that Paxton’s office was using attorney-client privilege to withhold every single email and text message sent to or received by him around the time of the Jan. 6 rally, which preceded the attack on the U.S. Capitol. Paxton and his wife were in Washington that day and appeared at the rally.

Wood said withholding all of Paxton’s communications during that week violated the law. As evidence, she noted the attorney general’s office released nearly 500 pages of communications sent to or received by First Assistant Attorney General Brent Webster — including some emails that included Paxton as a recipient.

The newspaper editors also said the attorney general’s office had no policy for handling work-related records kept on personal devices or accounts.

When a Morning News reporter sent Paxton a work-related text message and another reporter requested all his messages that day, Paxton’s office responded that no responsive messages existed. A spokesman for Paxton later said the attorney general doesn’t have to retain “unsolicited and unwelcome text messages to personal phones.”

Wood noted that the attorney general’s office stated in the past that the communications of government officials were subject to retention policies and the open records law.

Finally, the editors raised concerns that Paxton was turning over other people’s communications in response to requests for his own text messages.

The DA’s investigation agreed that Paxton had not provided his own text messages with officials at the attorney general’s office in Utah — where Paxton and his wife traveled during the February freeze — and instead turned over a copy of another person’s text to Paxton. The attorney general’s office did not explain why Paxton didn’t provide his own version of the text exchange.

See here for some background. The answer to how Paxton will respond is obvious: He’ll denounce the Travis DA’s actions as unfair, biased, and partisan, and he’ll not only not comply he’ll do everything in his power to delay a court decision that might force him to comply. Honestly, even then I doubt he’ll actually comply – I’d bet he destroys records first, and dares everyone to do something about it. I don’t think anything short of handcuffs and a jail cell will move him. What in his past record suggests otherwise? As the Trib notes, the January 6 commission in Congress is also seeking records relating to communications between Paxton and Donald Trump at that time. What do you think are the odds he’ll comply with them?

We know who and what Ken Paxton is. He’s shown us, every day. I commend the newspapers for pursuing this, and the Travis County DA for taking action. It’s just that it will take more than a lawsuit to make him budge. He’s going to require a consequence he fears. We’re nowhere close to that. The DMN and the Statesman have more.

Paxton asks Supreme Court to toss that pesky whistleblower lawsuit

Same argument, different court. Either Ken Paxton can be held accountable, or he gets a free pass to do whatever he wants.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the Texas Supreme Court to toss out a whistleblower lawsuit by four former officials who say they were improperly fired after accusing Paxton of accepting bribes and taking other improper acts.

Paxton told the court that his agency “enjoys … the right to fire its employees — especially employees whose political appointments require they act on behalf of the duly elected Attorney General — at will.”

Paxton also argued that he can’t be sued because the Texas Whistleblower Act was intended to protect government employees from on-the-job retaliation by another public employee.

“The Attorney General is not a ‘public employee,'” said the appeal, filed Wednesday and made public Thursday. “Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf.”

Paxton made similar arguments before the Austin-based 3rd Court of Appeals, but that court allowed the lawsuit to continue, ruling in October that the whistleblower act protects government workers from being fired for making “a good-faith report of illegal conduct … by the employer.”

Interpreting the act to exclude elected officials as employers would create a substantial loophole that runs counter to the law’s purpose of improving transparency and accountability, the 3rd Court ruled.

[…]

In his appeal to the Texas Supreme Court, Paxton characterized the complaints as matters involving policy disagreements — not a good-faith report of potential crimes as required by the whistleblower act.

“Plaintiffs were political appointees of the Attorney General who were dismissed from their posts following several policy disagreements. These disagreements each regarded duties well within the Attorney General’s authority, such as whether to retain outside counsel, issue a legal opinion, investigate potentially criminal acts and intervene in pending litigation,” the appeal said.

Paxton urged the all-Republican Supreme Court to reject the whistleblowers’ “vague, conclusory and speculative allegations,” saying they do not constitute a good-faith report of wrongdoing.

Lawyers for the whistleblowers will have the opportunity to respond to Paxton’s appeal in the coming weeks.

See here for the previous update. Paxton made the same argument to the Third Court, while also arguing that none of the whistleblowers had actually accused him of a crime, which meant they weren’t really blowing the whistle. I’m sure the plaintiffs will mostly repeat their earlier arguments as well. As for what the Supreme Court will do, or when they might do it – I for one will not be shocked if they wait until after the election – your guess is as good as mine. Reform Austin and KVUE have more.

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Paxton still wants to be supreme prosecutor

Please hold firm, CCA.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the state’s highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.

The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general’s office the authority to pursue criminal violations of the Election Code.

That 1985 law, the all-Republican court determined, violated the Texas Constitution’s separation of powers doctrine by granting Paxton’s executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature’s ability to delegate power to his agency.

[…]

In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton’s agency if needed.

On the other hand, the court ruled, the constitution limits the attorney general’s powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.

“Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings,” said the ruling, written by Judge Jesse McClure III.

“In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” McClure wrote.

Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors — including some who, he said, can’t be trusted with the job.

“Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” he said.

See here for the background. We all know what it is that Paxton wants to do, and I’m sure the CCA is aware as well. Their ruling was clear and it wasn’t close, and given Paxton’s plainly stated motivations, the only possible explanation for a reversal at this point – again, a reversal of their own 8-1 ruling, handed down less than a month ago – would be pure partisan politics. Is the CCA able to withstand that kind of pressure? I sure hope so.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

Preliminary injunction sought against mail ballot restrictions

Of interest.

Today in U.S. District Court for the Western District of Texas, the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges, and the Harris County Attorney’s Office moved for a preliminary injunction in Longoria v. Paxton, their challenge to the provision in Texas’s restrictive voting law (S.B. 1) that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The Brennan Center, Weil, and the Harris County Attorney’s Office are seeking the injunction on behalf of Isabel Longoria, the Election Administrator for Harris County, Texas; and the Brennan Center and Weil are also representing Cathy Morgan, a volunteer election worker in Texas.

The motion filed today requests a preliminary injunction against the S.B. 1 provision no later than February 14, 2022. Texas has a primary election on March 1, 2022. To vote by mail in the primary, Texas voters must request mail ballot applications between January 1, 2022, and February 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” said Isabel Longoria, Harris County Election Administrator. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy –an option they have under Texas law.”

Under S.B. 1, Longoria, Morgan, and other election officials and election workers across Texas can be imprisoned for a minimum of six months and fined up to $10,000 if they encourage a voter to apply for a mail ballot application. As the motion filed today argues, this provision violates the First Amendment and undermines election officials’ and election workers’ ability to perform their duties.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” said Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the Governor have made it a crime to do so.”

Texas law allows voting by mail in certain circumstances, including when a voter is 65 years old or older, sick, or disabled, out of the country on election day, or confined in jail.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” said Christian Menefee, the County Attorney for Harris County, Texas. “This anti-solicitation provision of SB 1 not only makes it harder for these folks vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections Administrator and violates the First Amendment.”

“S.B. 1 makes it a crime for public officials or election officials to encourage voters to request a mail ballot application, even if the person would be eligible to vote by mail. By contrast, under Texas law, it is not a crime for a public official or election official to discourage eligible voters to vote by mail,” said Liz Ryan, partner at Weil, Gotshal & Manges. “There is no valid justification for such a one-sided restriction on speech.”

S.B. 1 went into effect on December 2, 2021. It is an omnibus law, containing the provision challenged in Longoria v. Paxton as well as restrictions on other aspects of voting and elections. The law has drawn multiple lawsuits in addition to Longoria v. Paxton. The Department of Justice has challenged S.B. 1 and, many other entities, including the Brennan Center (in LUPE v. Abbott), have also filed suit against various parts of the law.

The motion for a preliminary injunction in Longoria v. Paxton is here.

The complaint, and more background on Longoria v Paxton, is here.

The first lawsuits filed against SB1 were filed in September, with Isabel Longoria a plaintiff in a complaint filed by MALDEF on behalf of a large group. The Justice Department lawsuit was filed in November, and there were three others filed in between. This one was filed on December 10, and if there was any news coverage of it I am not able to find it. The amended complaint was filed on Monday, December 27. It’s the motion for preliminary injunction, filed on Tuesday the 28th, for which I received a press release from the Harris County Attorney’s office, which in turn led me to find the linked article from the Brennan Center (and this Twitter thread), that is trying to make something happen more quickly.

My read on this – I’ve sent some questions to the Harris County Attorney’s office to get clarification – is that Elections Admin Longoria would like a ruling from the court to settle the question of what exactly she is and is not allowed to do, given that as things stand right now saying the wrong thing could get her arrested. We have the primaries coming up real soon, which means mail ballots are going to be getting requested, and people will have questions about them. Raising this as a First Amendment issue makes sense to me, and maybe it will make sense to the courts as well. Hopefully, we’ll find out soon.

UPDATE: Later in the day I found this Statesman story, which added a few details.

The ban on sending unsolicited mail-voting applications was one of many provisions contained in Senate Bill 1, the sweeping GOP voting law that was passed Sept. 1 during the Legislature’s second special session.

Several other provisions of SB 1 have been challenged in a half-dozen lawsuits by civil rights groups and the Biden administration’s Justice Department, including bans on 24-hour and drive-thru voting, ID requirements for mail-in ballots and protections for partisan poll watchers.

Those challenges are awaiting a summer trial.

Longoria and Morgan, however, told U.S. District Judge Fred Biery of San Antonio that waiting until summer is not an option for a prohibition that will handcuff them in the weeks leading up to the March 1 Texas primaries.

“Longoria has planned to engage in speeches and hold voter-outreach events but has been unable to do so for fear of criminal prosecution and civil penalties,” said Tuesday’s filing, adding that Longoria also halted plans to promote mail-in voting with fliers and on social media.

Similarly, Morgan argued in the filing that her work as a voter registrar — particularly around the University of Texas in Austin — will be hampered if she “can no longer proactively suggest that eligible but unaware voters request an application to vote by mail … as she has in the past.”

They asked Biery to rule no later than Feb. 14, noting that to cast a mail-in ballot in the primaries, voters must fill out and return an application between Jan. 1 and Feb. 18.

Texas Attorney General Ken Paxton has not yet filed a response to the lawsuit, though his office opposes the request for an injunction and will respond to that in the future, as well.

So there you have it. My guess is that the state’s response will be some combination of “you can’t sue us” and “neener neener neener”, secure in the belief that the Fifth Circuit will undo anything Judge Biery does. I will of course keep an eye on it.

From the “Keeping track of all these lawsuits is hard” department

Spotted on Democracy Docket:

Still the only voter ID anyone should need

Today, a judge for the U.S. District Court for the Western District of Texas denied a motion to dismiss Vote.org v. Callanen. The case, filed earlier this summer, challenges Texas’ “wet signature” law that requires individuals who submit their registration applications electronically or through fax to also provide a copy of their application with their signature — meaning signed with pen on paper. The complaint argues that this law unduly burdens the right to vote and targets voting advocacy groups such as Vote.org in violation of the First and 14th Amendments and the Civil Rights Act of 1964 and asks the court to prohibit its enforcement. The court already rejected one attempt to dismiss the case earlier this fall.

The court also rejected a motion to dismiss the case filed by Texas Attorney General Ken Paxton (R) that was joined by two county elections administrators. The motion claimed that Vote.org did not have standing to bring this case and that its complaint was insufficient. The court held that Vote.org had sufficiently shown that the wet signature law would cause harm to the organization’s efforts to register voters and the court may be able to provide the requested relief. The court also rejected the defendants’ arguments that there was no private right of action to sue and the plaintiffs’ claim fails because they did not allege any racial discrimination, finding that neither argument was supported by precedent. The case will move forward and all claims will be litigated to determine if the wet signature law is constitutional and in line with federal law.

My first reaction when I see something like this is to search through my archives for any past blog posts about it. Usually there is something, even in cases where I don’t immediately recognize the issue. I know I’ve heard of this lawsuit before, and sure enough I land on this post, about a federal lawsuit filed in San Antonio by a group including Vote.org over the state of Texas’ rejection of voter registration applications that did not include an “original signature” but instead an electronic one. But that lawsuit was filed in January of 2020, and this one was filed earlier this summer, in response to a bill passed during the regular session. I can’t find any further posts about the January 2020 lawsuit, and I seem to not have blogged about the one from this July. Oops.

My best guess here is that the initial lawsuit was dismissed for some reason – I can’t find any reference to it on the Democracy Docket webpage – and the July one was filed partly in response to the reasons the original one was tossed. I note that the first lawsuit had several other plaintiffs (the DCCC, the DSCC, and the TDP), while this one just has Vote.org associated with it. Or maybe it was withdrawn for some reason, with the same logic behind Lawsuit #2. If somehow that first lawsuit were still in existence, I would assume that it has been or will be combined with this one. Since I don’t see that on the lawsuit webpage (where you can see the original complaint plus two followup documents), I go back to my first assumption, that the 2020 lawsuit is no more. If someone reading this knows how to search for these things in the federal court system, please let me know if I’m mistaken in that.

Anyway. The point here is that allowing electronic signatures, which are common in all kinds of other legal transactions, would make it a lot easier to do voter registration. Which, of course, the state of Texas does not want. Note that the bill in question was a large one that did a lot of things – the initial text is all about recounts, and at first I thought this must have been the wrong legislation – but the “original signature” provision is in there later on. It was passed with bipartisan support, and I will just have to ask someone about it, because there must have been some good things in there for that to have happened. Be that as it may, we’ll see where this lawsuit goes.

Apparently, we’re still litigating whether Texas Central is a railroad

I admit, I’m a bit confused by this.

The Texas attorney general’s office has put its weight behind a landowner’s case against the companies developing a controversial Dallas-Houston bullet train, arguing they can’t force people to sell parcels needed for the high-speed rail project.

Weighing in on the matter at the invitation of the Texas Supreme Court, the attorney general’s office offered the latest twist in the nearly decade-long fight over a 240-mile line that would connect Dallas and Houston. While the project has picked up support from leaders of urban areas, it’s encountered hard resistance from residents of the rural counties on its proposed path.

One of those residents, Leon County landowner James Miles, sued Texas Central after the private company sought permission to survey his 600-acre property in 2015 as part of its efforts to examine the land for the project. Miles asked the courts to declare that the company did not have the right to enter his property because it does not have the eminent domain authority granted to railroad companies.

He won at a trial court, but the legal dispute reached the Texas Supreme Court after a state appellate court in Corpus Christi sided with Texas Central and a related company.

In a legal brief filed with the Texas Supreme Court on Friday, deputies for Texas Attorney General Ken Paxton argued the high court should reverse that appellate decision and rule in Miles’ favor because the companies fall short of the Texas Constitution’s definition of a rail company.

“The [companies] may only make preliminary examinations and surveys of private landowners’ properties for the purpose of constructing and operating a bullet train if they are either railroad companies or interurban electric railway companies,” the state wrote in its brief. “In the State’s view, the [companies] are neither.”

That leaves them with “no authority to enter, examine, survey or condemn Miles’ land,” the state wrote.

I am confused because at last report, the Supreme Court had declined to review that 13th Court of Appeals’ verdict. I Am Not A Lawyer, but right there in the story that I blogged about was the clear suggestion that this was the end of the road for that case. However, now that I see this story, a bit of googling shows that the Supreme Court granted a motion for a rehearing, which you can see here. It doesn’t seem to me that any new issues were raised by the Miles plaintiff, but what do I know? In any event, this explains why the AG brief says it is in response to “the Court’s letter of October 15, 2021 inviting the Solicitor General to express the views of the State of Texas”. Oral arguments for this are set for January 11. If any of you lawyers out there want to shed some extra light on this, by all means please be my guest.

Come watch Ken Paxton light your tax dollars on fire

I mean, Theranos would have delivered a greater return on investment than this.

Best mugshot ever

Texas Republican Attorney General Ken Paxton has been one of former President Donald Trump’s most reliable allies in spreading the myth of widespread voter fraud, particularly in the 2020 election, and frequently boasts that few states are as vigilant.

His office’s election integrity unit added two lawyers to the team in the last year, bringing it up to six staffers total, and worked more than 20,000 hours between October 2020 and September 2021. Its budget, meanwhile, ratcheted up from $1.9 million to $2.2 million during that time.

Yet records from the office show that the unit closed just three cases this year, down from 17 last year, and opened seven new ones. That includes the newly created unit focused on the 2021 local elections, which has yet to file a single case.

“This is an exorbitant amount of money that has resulted in no benefit for the average Texan,” said Austin Evers, executive director of American Oversight, a left-leaning nonprofit government watchdog that regularly files public information requests and files suits to force compliance with those requests. The organization shared some records it obtained from the Texas Attorney General’s Office with Hearst Newspapers for this report; others were obtained independently by Hearst Newspapers.

Evers added: “Taxpayers are funding a political stunt meant to fuel the false claim of a stolen election and justify voting restrictions.”

[…]

Richard L. Hasen, an election law professor at the University of California at Irvine, said there’s a more likely explanation, noting that Paxton, who is running for re-election, has “every incentive,” politically speaking, to vigorously go after voter fraud, as it’s an issue that energizes his party’s base.

“He’s finding very little of it despite spending a lot of money and using a lot of resources looking for it,” Hasen said. “The reason is not that such fraud is too hard to find. Those that commit voter fraud tend not to be brain surgeons. The reason he’s not finding a lot of it is because voter fraud is rare.”

Multiple academic studies and journalistic reviews have uncovered no evidence of widespread voter fraud, nor did a wide-ranging investigation of election fraud in 2020 conducted by the U.S. Justice Department.

There’s more, and the story does a good job of highlighting how Paxton takes the ridiculously small numbers involved in his crusade and exaggerates them to make them sound slightly less small, so read the rest. Just understand that facts have nothing to do with any of this, and won’t do anything to deter Paxton and his raving band of saboteurs. The argument here is exactly the same as the ones that Republicans have been using for at least the last 20 years for spending on “border security”: If they catch more cases of “vote fraud” it means that what they’re doing is working and so they need to get more money for it. If they catch fewer cases, it means that they’re falling behind and need to get more money to keep up. There are no circumstances under which spending less on this useless and harmful exercise makes sense.

One more thing:

While it’s true that the office has more cases pending this year over last year, 44 up from 38, that’s not because of a surge in new prosecutions. It’s because the vast majority of cases that were pending around this time last year are still making their way through the court system.

Among the cases pending include that of Hervis Rogers, a Black man from Houston who was charged this year with illegally voting while on parole, after he had made national headlines for waiting six hours to vote in the 2020 primary election.

A new ruling from the state’s highest criminal court Wednesday may afford legal relief to Rogers and potentially others, after it found that Paxton’s office does not have the constitutional right to prosecute voter fraud without the consent of local prosecutors.

Yes, given that recent ruling, one has to wonder how much of this activity is even legal at this point. I would suggest that attorneys for every one of the defendants in Paxton’s crosshairs, as well as all of those that have been convicted or pled guilty to something, start filing briefs to have cases and convictions tossed. Let’s expose this for the mockery it is.

Biden employer vaccine mandate back on

For now, at least.

A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.

The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

[…]

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.

“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.

Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.

The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.

The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.

Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.

Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.

The Lege will get worse before it gets better

I have three things to say about this.

More than two dozen members of the Texas Legislature are retiring or running for a different seat next year, creating a slew of vacancies that could push both chambers to become redder and more polarized by the time lawmakers reconvene in 2023.

Many of the outgoing members are center-right or establishment politicians with years of experience, opening up seats for younger and more ideologically extreme replacements. In many cases, their districts were redrawn to strengthen the GOP’s hold on the Legislature, eliminating all but a few of the battleground contests that tend to attract more moderate candidates.

Those changes, paired with new political maps that leave little opening for Democrats to gain ground in November, have laid the groundwork for an even more conservative Legislature, even as Republicans toast the 2021 legislative session as the most conservative in the state’s history.

“The tides are shifting again,” said state Rep. Dan Huberty, a moderate Republican from north Houston who is not seeking re-election. “You have different political leaders, and the constituency has a view of what they want. You’re going to see a shift. I would assume it’s going to be more conservative.”

The Capitol is also poised to lose some of its longest tenured legislators to retirement, draining “a generation of policy expertise” on areas such as health care, education, agriculture and the border, said Brandon Rottinghaus, a political science professor at the University of Houston. The average tenure of the departing members is 13 years.

We’ve covered this before. What distinguishes members like Dan Huberty and Chris Paddie and Lyle Larson and even otherwise crappy ones like James White is that they had policy chops, in at least one area, and took that part of legislating seriously. They were perfectly happy to vote for all of the destructive wingnut crap, and we should never forget that as we say nice things about their legislative experience, but the truth is that whoever survives the freak show primary to replace them will almost certainly be worse than they were. Until such time as Dems win a majority, or Republicans become collectively less sociopathic (whichever comes first), the Lege will become a worse place than it now is.

In 2011, Huberty was one of 37 mostly Republican freshmen in the Texas House — a mix of conservatives and moderates who rode the tea party wave into office, including three members who had served in the House previously, lost their seats and then gained them back that year.

By 2023, few of the moderate new members elected from that class will remain, with most of the remaining holdouts — including Huberty, John Frullo of Lubbock, Lyle Larson of San Antonio and Jim Murphy of Houston — declining to seek re-election next year.

We’ve discussed this before as well. What do all these members have in common? They will have served twelve years in the House, which makes them fully vested in the Lege’s pension plan. There may well be other reasons for their departures, and of course the first post-redistricting election is always an exodus, but I guarantee you that’s a factor.

In the Senate, [Sen. Eddie] Lucio’s seat could be the sole competitive race next year. The other open districts are solidly Republican, and those who are likely to replace the outgoing members are ideologically further right than their predecessors — or are, at least, closely allied with [Lt. Gov. Dan] Patrick, the leader of the upper chamber.

[Sen. Kel] Seliger was known for frequent fallouts with Patrick, defying him at times and blocking passage of priority bills. But state Rep. Phil King, the Weatherford Republican vying to replace him, has already earned Patrick’s stamp of approval.

[Sen. Larry] Taylor, one of the most moderate members of the Senate, is also poised to be replaced by a more conservative successor. Those running to replace him include [Rep. Mayes] Middleton and Robin Armstrong, a physician backed by Attorney General Ken Paxton, a tea party favorite. (Armstrong gained attention last year when he controversially administered hydroxychloroquine to COVID-19 patients at the Texas City nursing home where he works.)

We really need a better descriptor in these stories than “moderate”, which has lost all meaning in the post-Tea Party, post-Trump era. Kel Seliger is conservative in the way someone from the Reagan/Bush years would recognize the term. He’s also a legitimate work-across-the-aisle guy, and was maybe the last Senate Republican to not care about whatever Dan Patrick wants. You could fit a term like “iconoclast” or “maverick” to him if you had to, but he’s just a guy who was generally faithful to his political beliefs, and voted in what he believed was the best interest of his district. Which these days is pretty goddamned quaint. As for Taylor, look, he’s as down-the-line a Republican as there is. It’s true, he doesn’t spew conspiracy theories every five minutes, he’s not performatively nasty on Twitter, and as far as I know he eats his food with a knife and fork, and chews with his mouth closed. That makes him fit for human society, but it has nothing to do with how he votes or whether there’s an inch of distance between him and Dan Patrick. If that’s what we mean these days when we refer to a Republican legislator as “moderate”, can we please at least be honest about it?

CCA tells Ken Paxton he’s not the supreme prosecutor

Cry me a river, Kenny.

Best mugshot ever

Texas’ highest court for criminal cases on Wednesday struck down a law that allows the attorney general to unilaterally prosecute election cases.

The state’s Court of Criminal Appeals issued an 8-1 opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said.

Attorney General Ken Paxton, a Republican who has been aggressive in trying to root out voter fraud, bashed the opinion from the all-GOP court. He said in a tweet that the ruling “could be devastating for future elections in Texas.”

At stake was a part of the election code that says the attorney general, the state’s top law enforcement officer, “may prosecute a criminal offense prescribed by the election laws of this state.”

The provision was thrown into jeopardy by a long-winding case involving Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Paxton’s office stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.”

Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

I don’t have any posts about this, but from reading the opinion, Sheriff Stephens, who was elected in 2016, was charged with making false claims on her finance report, specifically claiming that some $5,000 contributions were actually under $50. I don’t know what her explanation was, or why the JeffCo DA declined to prosecute. The rest of the opinion is pretty dense and technical, but the summary of what is at stake is quite simple. Here’s the opening paragraph from the opinion:

Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.

And here’s the section of the law in question, which is now null and void. Interestingly, that law passed originally in 1985, and was last modified in 1997. Either no AG had ever tried this before, or there are some people that have been prosecuted and maybe convicted under this statute that deserve some relief.

Anyway. I for one will sleep better tonight knowing that Ken Paxton does not have unfettered discretion to bring vote “fraud” charges against anyone he feels like. (I’m also old enough to remember when the main function of the AG’s office was civil enforcement and collecting child support. My aunt worked in that office in the 80s and 90s, and that was what her department did.) I’ll give the last word to these gentlemen:

I’ll take my wins where I can get them.

Crystal Mason using SB1 to try to overturn her illegal voting conviction

Hope this works. It would be one small good thing to come out of that otherwise harmful law.

Crystal Mason, the Tarrant County woman whose illegal voting conviction has garnered national attention, is asking for a Texas appeals court to overturn her conviction under a new provision of Texas’ recently adopted election law Senate Bill 1.

Mason, 46, was sentenced to five years in prison for attempting to cast a ballot in 2016′s presidential election. At the time, Mason was on supervised release from a federal tax fraud conviction and was prohibited from voting in Texas.

Her lawyers with the American Civil Liberties Union this week filed a brief with the Texas Court of Criminal of Appeals citing the state’s new election law that took effect earlier this month in asking for her conviction to be overturned.

Tucked within SB 1 that was passed by the Texas Legislature in this year’s second special session is a section erasing criminal penalties for felons who attempt to vote without knowing that they were committing a crime. That portion of the law came about with Mason’s conviction in mind.

“SB 1 is a repudiation of Ms. Mason’s conviction and five-year sentence of incarceration,” the brief states.

[…]

Her attorney with the American Civil Liberties Union declined a request for comment. The Tarrant County District Attorney’s office, which prosecuted and has argued against overturning Mason’s conviction, said in an emailed statement that SB 1 has no bearing on Mason’s case.

“Even under the new law, she is guilty,” office spokeswoman Anna Tinsley Williams said. “She wasn’t convicted simply for casting the provisional ballot; she was convicted for casting a provisional ballot when she knew she was ineligible to vote. Knowledge of ineligibility is the key. This is not a case of mistaken voting.”

See here and here for some background. House Democrats had negotiated an amendment in the original bill during the regular session that would have retroactively covered Mason’s case, but it was taken out in the conference committee version by Senators on the committee, and that breaking of the faith was one of the catalysts for the initial quorum break during the regular session, which prevented the bill from getting a final vote. In the second special session, after House Dems had returned from Washington, a similar amendment was added to the House version of the bill, but it again ran into resistance in the Senate, with bill author Bryan Hughes the main obstacle. (How bad does Hughes look when even Briscoe fricking Cain was willing to add this provision to the bill?) If people can read the final version of the bill to include or not include Crystal Mason in its scope, then it’s at best a tossup what the CCA will do, and given their usual pro-prosecution bias, I can’t say I’m optimistic. But it’s sure worth the try.

HISD will keep its mask mandate

This is in response to that recent Fifth Circuit ruling about mask mandates in schools and whether Greg Abbott’s ban on them violated the Americans with Disabilities Act.

The Houston Independent School District will keep its mask mandate in place, district officials said Thursday, despite a federal appeals court ruling halting an injunction on Gov. Greg Abbott’s order prohibiting such requirements.

“The ruling does not impact the requirement that students, staff, and visitors must wear masks while on HISD property. This mandate remains in place for HISD schools,” the district said in a statement. “While we are heartened that we have maintained the lowest rate of active COVID-19 cases in the state and vaccinations are now available for our youngest students, HISD’s mask mandate will remain in place for students, staff, and visitors in all HISD schools, buildings, and buses regardless of vaccination status.”

HISD plans to review the mandate at the end of its semester after the holidays, Superintendent Millard House II said last month.

House implemented HISD’s mandate shortly before the start of the school year and the board of trustees voted to express support for it.

The district, by and large, has avoided significant backlash from individuals opposing the mandate, outside of a handful of parents who have addressed House and trustees at board meetings and during a recent series of community forums.

The district’s statement noted that HISD and other districts sued over the governor’s order in state district court. The lawsuit, it said, is based on state law regarding the authority of Texas school districts to make health and safety decisions for their students. It remains in litigation.

See here for more on the Fifth Circuit ruling. As noted, Superintendent House did say that HISD would consider lifting its mask mandate after the holidays if conditions continue to improve; who knows what will happen now that the omicron variant is out there. The federal lawsuit really didn’t have much bearing on HISD anyway, since they were among the plaintiffs that had sued Abbott in state court over his mandate ban, and won an injunction that as far as I know is still in place; besides, Abbott and Paxton don’t have any authority to enforce it anyway. The district and the Superintendent are doing the right thing. Keep on keeping on. The Press has more.

Vaccine mandate for health care workers blocked

I’d say this is getting ridiculous, but we’re well past that point.

A federal judge on Monday blocked President Joe Biden’s administration from enforcing a coronavirus vaccine mandate on thousands of health care workers in 10 states that had brought the first legal challenge against the requirement.

The court order said that the federal Centers for Medicare & Medicaid had no clear authority from Congress to enact the vaccine mandate for providers participating in the two government health care programs for the elderly, disabled and poor.

The preliminary injunction by St. Louis-based U.S. District Judge Matthew Schelp applies to a coalition of suing states that includes Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. All those states have either a Republican attorney general or governor. Similar lawsuits also are pending in other states.

The federal rule requires COVID-19 vaccinations for more than 17 million workers nationwide in about 76,000 health care facilities and home health care providers that get funding from the government health programs. Workers are to receive their first dose by Dec. 6 and their second shot by Jan. 4.

The court order against the health care vaccine mandate comes after Biden’s administration suffered a similar setback for a broader policy. A federal court previously placed a hold on a separate rule requiring businesses with more than 100 employees to ensure their workers get vaccinated or else wear masks and get tested weekly for the coronavirus.

Biden’s administration contends federal rules supersede state policies prohibiting vaccine mandates and are essential to slowing the pandemic, which has killed more than 775,000 people in the U.S. About three-fifths of the U.S. population already is fully vaccinated.

But the judge in the health care provider case wrote that federal officials likely overstepped their legal powers.

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” Schelp wrote in his order.

That ruling doesn’t affect Texas, but this one does.

A federal judge on Tuesday blocked the Biden administration’s COVID-19 vaccination mandate for health care workers from going into effect nationwide next week after Texas and other states challenged the order.

Louisiana Western District U.S. Judge Terry Doughty’s ruling follows the same decision on Monday from Missouri U.S. District Judge Matthew Schelp. However, Schelp’s ruling applied for only 10 states.

Doughty wrote in his decision that the mandate exceeds the Biden administration’s authority.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” Doughty wrote.

I Am Not A Lawyer, and I couldn’t find any commentary out there about this, but just knowing that it was two Trump-appointed judges who made these rulings makes me look at them with extreme skepticism. (There are some other reasons for that, as the Daily Kos story indicates. I still want to see some serious lawyers weigh in on it.) The willingness of so many people to put the lives of so many other people in danger just boggles my mind.

On the moderately positive side, there was this.

A judge in Galveston has denied a bid from a group of federal workers seeking an injunction to halt enforcement of the White House’s COVID-19 vaccination mandate, saying they had natural immunity from having been infected with the virus.

John J. Vecchione, senior litigation counsel for the New Civil Liberties Alliance in Washington, D.C., said his team argued it was “arbitrary and capricious” to require vaccinations across the board for all federal employees, because this particular group of workers was not any more dangerous to others than people who have been fully vaccinated. Vecchione says in court documents his clients’ immunity is “at least as robust and durable as that attained through the most effective vaccines.”

[…]

The 11 litigants include a high ranking lawyer at U.S. Immigration and Customs Enforcement from Frisco, a Navy technician from Robstown, an air traffic controller from St. Cloud, Fla. , a Georgia-based veterinary specialist from the Department of Agriculture, a special agent with the Secret Service from Springfield, Va. and a supervisory air marshal with Transportation Security Administration in Palos Verdes, Calif. .

The suit is directed at Dr. Anthony Fauci, others on the COVID response task force and representatives of other federal agencies tasked with enforcement or supervision of the mandate. The deadline for vaccinations was Nov. 22 and enforcement was set to begin some time after Nov. 29.

U.S. District Judge Jeffrey V. Brown denied the workers request for a temporary injunction, saying they did not face irreparable harm if they complied with the mandate and they were unlikely to win their case on the merits. He noted that all but one of the plaintiffs were pursuing religious exemptions that would allow them to avoid the vaccine. The worker who did not seek an exemption works for ICE; the judge said the civil liberties lawyers had probably erred in failing to sue that agency.

Any win for sanity at the district court level feels like it’s written on sand these days, but I’ll take what I can get. Roy Edroso has more.

Appeals court upholds Dallas mask mandate

There’s still mask mandate litigation going on, and Greg Abbott keeps getting his ass handed to him.

Clay Jenkins

Mask mandates will be allowed in the State of Texas. The Fifth Court of Appeals in Dallas issued the ruling during the late night on November 22.

The decision is the latest chapter in the fight between Governor Greg Abbott and Dallas County Judge Clay Jenkins over how to handle the COVID-19 pandemic.

Jenkins had argued he had the right to issue a local mask mandate if it means protecting public health and that he had the power to do so under the Texas Disaster Act.

Abbott had asserted that he had the authority to issue a statewide order banning the mandates. His attorneys argued it was a matter of law and that the governor was given the power under the Texas Disaster Act.

On Monday, an appeals judge issued a temporary injunction against the governor’s ban saying, “…Abbott lacks legal authority to act as he attempted. Instead, by endeavoring to exercise power beyond that given to him in the Disaster Act, he attempted to infringe on Jenkins’s powers.”

[…]

After a district judge issued a temporary injunction supporting Jenkins in August, the governor’s office sought a higher ruling from the district court of appeals.

Neither the governor’s office nor the Texas Attorney General’s office have commented on the ruling, but they could choose to appeal it to the Supreme Court of Texas.

“We’ll have to see what the attorney general and the governor want to do, but I’m not tired and I will continue to stand for your public health against any other elected official,” said Jenkins.

In the meantime, Jenkins says, don’t let all the legal back and forth confuse you.

“Don’t listen to what people tell you is legal. Listen to what doctors tell you is safe,” he said.

See here for the previous entry, and here for the opinion. Note that this is a state lawsuit about what cities and counties can do, and has nothing to do with the federal lawsuit that the Fifth Circuit Court of Appeals was meddling in. Different Fifth Courts – believe me, I know, it’s confusing.

Beyond that, not a whole lot of coverage when I went looking for stories, which I knew to do because I saw this tweet from Judge Jenkins. Maybe that’s a holiday week problem, I don’t know. As I said, there’s a ton of lawsuits out there over the Abbott executive order that banned mask mandates by cities and counties and school districts, and so far the plaintiffs have mostly won. That may all come crashing to a halt at the Supreme Court, but until then the leaders who have been bold and exercised actual leadership have been rewarded for it. Gotta enjoy those victories while you can.

Biden tries again on the employer vaccine mandate

Different appeals court this time.

The Biden administration is asking the 6th US Circuit Court of Appeals to wipe away an order from another appeals court blocking its Occupational Safety and Health Administration vaccine mandate.

Several lawsuits were brought challenging the OSHA mandate, and last week the cases were consolidated in the 6th Circuit, an appeals court that leans right, as 10 of its 16 active judges are Republican appointees.

But, before the cases were consolidated, the 5th US Circuit Court of Appeals — perhaps the most conservative appeals court in the country — issued its order blocking the mandate.

In its filing overnight Tuesday, the Biden administration said the 5th Circuit erred in how its interpretation of the Occupational Safety and Health Act limited the law’s reach, while also arguing that the 5th Circuit had not taken into proper account the public health interest in letting the mandate go into effect.

“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses,” the administration said in the new filing. “That is a confluence of harms of the highest order.”

[…]

The administration told the 6th Circuit that if it does not lift the order blocking the mandate, it should at least modify the 5th Circuit order “so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.”

See here for the previous update. The 6th Circuit is also pretty damn “conservative”, but it’s at least another shot. I have no idea what to expect, though I figure it’s best to not get one’s hopes up. I do hope they don’t take too long. Bloomberg Law has more.

Louie Gohmert will run for AG

I got nothing.

Louie Gohmert

U.S. Rep. Louie Gohmert, R-Tyler, announced Monday he is running for attorney general, challenging fellow Republican Ken Paxton, in the already crowded primary.

“Texas I am officially running to be your next Attorney General and will enforce the rule of law,” Gohmert tweeted after announcing his campaign on Newsmax.

Gohmert announced earlier this month that he would join the GOP lineup against Paxton if he could raise $1 million in 10 days. The 10th day was Friday. Gohmert said in an announcement video that he has “reached our initial goal of raising $1 million in order to start a run for” attorney general, though he did not confirm whether he was able to collect it in 10 days.

Gohmert is at least the fourth primary opponent that Paxton has drawn. The others include Land Commissioner George P. Bush, former Texas Supreme Court Justice Eva Guzman and state Rep. Matt Krause of Fort Worth. At least three Democrats are also running for the job.

See here for the background. It must be noted that this means that Gohmert will no longer be in Congress after next year. I’m going to need some time to fully absorb that. Of course, there’s a zero percent chance that whoever survives the Republican primary for CD01 will be any better than Gohmert. That does temper things a bit.

Gohmert was originally scheduled to announce his decision Friday on Mark Davis’ radio show in Dallas, but he never called in and the show went off air without hearing from him.

Louie’s gotta Louie. If you look up the word “shitshow” in the dictionary, it will simply say “The 2022 Republican primary for Attorney General in Texas”. God help us all.

UPDATE: Per the Chron and Taylor Goldenstein on Twitter, State Rep. Matt Krause, the chief of the library police, will drop out of the AG race to run for Tarrant County DA, and he will endorse Gohmert. Of course he will. Reform Austin has more.

Texas sues over the health care workers vaccine mandate

It’s a trifecta.

In Texas’ latest legal challenge targeting federal vaccination mandates, Attorney General Ken Paxton is suing the Biden administration over its recent order requiring health workers to receive the COVID-19 vaccine.

The Biden administration issued an emergency order, which went into effect Nov. 4, requiring eligible workers at health care facilities participating in the Medicare and Medicaid programs to get the first shot of a two-dose vaccine or a one-dose vaccine by Dec. 6.

Paxton called the mandate “an unprecedented federal vaccine decree” on health care workers.

“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans,” Paxton said Monday night in a statement. “We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”

Texas joins 10 other states suing the Biden administration over the mandate.

This joins the federal contractors mandate lawsuit and the employer mandate lawsuit, which by the way will now go to the Sixth Circuit, which may not be an improvement. There’s no point in making arguments about public safety or any other merit-base claim. The Fifth Circuit is gonna do what the Fifth Circuit does, and then either SCOTUS will step in or they’ll wave their hands at the complex legal complexities of it all and hope it’s all moot by the time it gets back to them. If you want to do something about it, support the Democratic nominee for AG against Ken Paxton or one of the Ken Paxton wannabes in 2022. That’s the one fully clear thing in this mess.

Fifth Circuit extends hold on Biden employer vaccine mandate

The worst court in America keeps on keeping on.

A federal appeals court kept its block on the implementation on the Biden administration rule that requires large companies to mandate COVID-19 vaccines for employees or carry out weekly testing starting in January. The rule, which the court characterized as a “mandate,” goes “staggeringly overboard” and “grossly exceeds [the Occupational Safety and Health Administration’s] statutory authority,” Judge Kurt Engelhardt wrote in the 22-page ruling that was joined by Judges Edith H. Jones and Stuart Kyle Duncan.

The three-judge panel on the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued the ruling saying that the challenges to the rule were likely to be successful so it further prevented the government form moving forward with its implementation. The Fifth Circuit is largely considered one of the country’s most conservative appeals courts and the panel is made up of one judge appointed by President Ronald Reagan and two others appointed by President Donald Trump.

Dozens of lawsuits have been filed in numerous appeals courts against the rule by businesses, religious organizations, and states. Engelhardt said those who opposed the measure, including Texas, Louisiana, Mississippi, and South Carolina, had standing to sue in the Fifth Circuit. “Rather than a delicately handled scalpel, the mandate is a one-size fits-all sledgehammer,” reads the ruling. The judges said the rule imposes a financial burden and could amount to a violation of the Constitution’s commerce clause. “The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the judge wrote.

See here and here for the background. The Fifth Circuit never disappoints, do they? Completely predictable, regardless of the facts.

One small bit of potentially good news.

The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions. The Supreme Court is expected to eventually decide the matter.

Dena Iverson, a Justice Department spokeswoman, said the Biden administration would defend the mandate through that process.

Maybe we can hope for a better outcome from a less corrupted court. In the meantime, I’ll leave you with this:

Further developments soon, we hope. CNBC and Reuters have more.

Bexar mask mandate back on

Abbott and Paxton take another L.

A temporary order that allows the City of San Antonio and Bexar County to require masks in their buildings will stay in place until a lawsuit challenging an executive order goes to trial in December, the 4th Court of Appeals ruled Wednesday.

In another blow to Gov. Greg Abbott’s executive order, U.S. District Judge Lee Yeakel ruled Wednesday in Austin that the ban on mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules, according to The Texas Tribune.

After San Antonio and Bexar County sued Abbott over his July executive order that prohibited local governments from issuing mask mandates, a Bexar County district judge issued a temporary injunction in August. That temporary injunction gave the city and county the ability to require masks inside city- and county-owned facilities as well as in public schools that teach pre-kindergarten through 12th grade.

The 4th Court of Appeals had already upheld the temporary injunction after Texas Attorney General Ken Paxton appealed the trial court’s decision and argued that his appeal automatically blocked the city and county’s mask mandate. That decision made in August was temporary until the appellate court could take up the matter and issue a more final decision, which occurred Wednesday, said Larry Roberson, civil division chief of the Bexar County District Attorney’s office.

“This is the opinion on the temporary injunction,” he said. “The earlier issues were just procedural.”

The city and county argued that the governor’s executive order exceeded his scope of authority by blocking local governments from creating public health prevention measures. They also argued that by not having the ability to enforce their own public health measures, coronavirus transmission would be more widespread without masks and cause irreparable harm.

Their arguments were enough to validate the need for a temporary injunction, three judges on the 4th Court of Appeals found.

“We conclude that the City and County have pled sufficient facts to establish that their injuries are ‘likely to be redressed by the requested relief,’” Chief Justice Rebeca C. Martinez wrote in the appellate court’s opinion issued Wednesday.

See here for the previous update and here for the court’s opinion. I will note that this is still a temporary restraining order and that the merits of the case will be heard at trial on December 13. That said, I will also note these sentences from the opinion, which addresses the question of whether Abbott had the power to forbid local governments from issuing mask mandates with the emergency powers granted to him under the Texas Disaster Act of 1975:

We hold Section 418.016(a) does not provide the Governor with the authority he claims to suspend statutes that concern local control over public health matters or to prohibit local restrictions on face coverings.

[…]

Applying the plain language of the Act, we conclude the City and County demonstrated a probable right to relief that the Governor’s power to suspend laws, orders, and rules under section 418.016(a) does not include the power to prohibit face-covering mandates that local governments may adopt to respond to public-health conditions or the power to suspend public-health statutes authorizing local governments to act for the benefit of public health.

[…]

Because the Governor possesses no inherent authority to suspend statutes under the Texas Constitution and he exceeded the scope of statutory authority granted to him by the Legislature, his actions in issuing Executive Order GA-38 were done without authority.

In between is a bunch of technical legal stuff that will make your eyes glaze over, but the bottom line is that this directly addresses the claim that the Governor’s emergency powers allow for him to suspend local orders that are intended to mitigate the disaster in question, an authority that would seem to contradict the whole purpose of a “Disaster Act”. We’ve discussed that several times here, and while that question will surely come up again in the trial court hearing and later on appeal, it’s good to see this basic idea affirmed here by the appellate court. May such common sense continue to prevail as this moves on to the trial stage. The Current has more.

It’s mostly about the gay books

Color me not surprised.

Greg Abbott in the 80s

While a Texas House committee chairman’s inquiry into schoolbooks has often been linked to new state laws limiting how teachers address slavery and racism, most of the literature he’s called into question deals with a wholly different subject: LGBTQ issues.

That has also been the focus of Gov. Greg Abbott’s recent demands of the Texas Education Agency to work with other statewide agencies to set standards to prevent schoolchildren from exposure to what he’s defined as “pornography or other inappropriate content” and to investigate any possible related crimes. The books that prompted such labels and backlash from parents at a handful of Texas school districts are written by LGBT authors and discuss LGBT identity and relationships.

Democrats have denounced the Republican efforts as politically motivated attacks meant to gin up support from their base that they say will ultimately result in censorship and harm students, especially those who are already marginalized.

It’s part of a trend of conservative-led fights across the country over how schools can teach about issues of race, particularly systemic racism, as well as sex and gender, blurring the already faint line between local and national politics.

Rep. Matt Krause, R-Fort Worth, chairman of the House General Investigating Committee, had given the districts until Friday to respond to his inquiry. Several reached by Hearst Newspapers — including Katy and Fort Bend in the Houston area and Northside and Spring Branch in the San Antonio area — said Thursday that they were still reviewing the request and/or did not expect to make the deadline.

The letter had asked districts whether they carried any books on a list of about 850 that included Pulitzer Prize winners and other acclaimed literature.

Krause, who has not responded to multiple requests for comment, has said the purpose of his request is to verify that the districts are in compliance with new laws passed this year.

[…]

Danika Ellis, who runs The Lesbrary, a blog about lesbian and bisexual books, reviewed the list of titles Krause ran by school districts. She found — as a Hearst Newspapers analysis also concluded — that more than 60 percent of the books had to do with matters related to LGBT topics. About 20 percent touched on transgender issues or featured a transgender character. At least 9 percent related to sex education.

That’s compared with just about 8 percent that relate to race and racism. The rest of the books were not as easily categorized but related to topics such as teen pregnancy, abortion, contraception, sexual assault and sexually transmitted diseases.

“This house bill is supposed to prevent ‘discomfort,’ but what about the discomfort of kids who experience racism or who never see themselves represented in the curriculum or the books on the shelves?” Ellis wrote on her blog. “What about the discomfort of queer kids who see that even mentioning people like them is categorized as inappropriate or obscene or even ‘pornography’?”

HB1525 was primarily meant to make adjustments to the major school finance bill, HB3, passed in 2019. But a last-minute amendment by Sen. Bryan Hughes, R-Mineola, inserted language that required school boards to develop a policy for the adoption of human sexuality curriculum and set new guidelines for boards to follow in approving the curriculum.

They now have to take into account the advice of local school health advisory councils, parent groups appointed by school boards that give recommendations. They also were already required to ensure any approved materials were “suitable for the subject and grade level for which the curriculum materials are intended” and “reviewed by academic experts.”

Hughes did not respond to a request for comment.

Rep. Mary González, D-Clint, who co-authored the bill and chairs the Texas House LGBT Caucus, said it “never had the breadth” that Krause is claiming it has.

“The SHAC was put into a school finance bill to continue to target sex education when we know research tells us the opposite: that medically accurate, age-appropriate sex education is really important to holistic development,” González said. “However, what Rep. Krause has been trying to do over the last few weeks is beyond sex education and beyond the SHAC’s work, and he is primarily doing this not out of concern for children but out of political advantage for his own attorney general race.”

See here and here for the background. As of Friday afternoon, Austin and Dallas ISDs had said they will not respond to Krause’s request; it’s my hope that more ISDs, including Houston, will follow suit. The Trib has two more stories about this publicity/campaign stunt by Krause, which you can read as you see fit. I hate giving the little twerp any more attention for this, but ignoring it doesn’t seem right, either.

Some years ago, I was having a discussion with a friend about then-Mayor Annise Parker’s victory in the 2009 election over Gene Locke. I was trying to figure out why Parker did better in the Republican City Council districts than Locke did, given that Locke had made some effort to woo Republican voters. My friend’s response was “they’re more racist than they are homophobic”, which I still think about from time to time. From the vantage point of today, maybe that’s not so clear anymore.

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.)

People still support mask mandates

One more tidbit from the UT/Trib poll for October.

A majority of Texas voters support requiring masks at schools and indoor public places and allowing businesses to require their employees to be vaccinated, according to a new University of Texas/Texas Tribune poll.

This comes as Gov. Greg Abbott has banned vaccine requirements by all Texas entities, including private businesses and health care facilities, and mask mandates by local government and state agencies.

A survey of 1,200 registered voters in Texas showed that 57% of voters support mask requirements in indoor public spaces based on local conditions, while 58% support mask requirements for students and staff in public schools. Forty percent oppose the requirements at indoor public places and 39% oppose the requirements at schools.

Fifty-four percent of Texas voters also support allowing businesses to require employees to provide proof of vaccination or submit to frequent COVID-19 tests, compared to 43% who are opposed. Meanwhile, a slight plurality is opposed to the same requirements for customers: 47% support them, while 49% are against.

Similarly, 54% of voters support and 43% oppose allowing public schools to require staff to either provide proof of vaccination or submit to frequent testing. Texas voters are nearly split on requiring students to adhere to the same measures: 49% oppose the idea and 48% support it.

Texans also leaned in favor of requiring vaccinations for admission to large events or activities, with polls showing that 47% of voters favor the vaccine passports while 43% oppose them.

Voters were fairly evenly split on whether they supported allowing government entities to require vaccines or COVID-19 tests for employees. Just 50% supported the requirements while 46% opposed.

Overall, there is a wide partisan divide on the issue of mandates. While Democrats surveyed overwhelmingly support them, there is still significant opposition among Republicans.

“As a whole, the state looks more in favor of mitigation efforts than the policy, but amongst the majority party there’s really not much appetite for many of these mitigation efforts,” said Joshua Blank, research director at the Texas Politics Project.

That’s true, and it’s what I’d expect as that has been the general pattern on all things that have been politicized these days, but with a caveat. If you look at the bar charts they included to show the partisan breakdown for some of these questions, Democrats are more in favor than Republicans are opposed, and in general independents are in favor, though by modest margins. For example, on the question of whether businesses should be allowed to mandate vaccines for their employees, Democrats favor it by an 89-9 margin, independents favor it by 53-41, and Republicans oppose it by 72-26. That’s more than enough to give it a fairly solid majority overall.

You can see a few more examples in the story, some of which are closer calls, and you can see all of the crosstabs here. They hadn’t included that in previous poll stories, probably because they wanted to publish them all before they spoiled them by showing the data ahead of time. I’ve got another post in the works based on a couple of interesting bits I saw in there, but for now the takeaway is that a campaign that is harshly critical of Abbott and Paxton for their unrelenting obstruction on masking and vaccination will find some purchase. If nothing else, it will fire up the base, and for sure we’re going to need all of that we can get.

Sometimes, you really do have to hand it to Louie Gohmert

Of all the Louie Gohmerts in the world, he’s the Louie Gohmertiest.

Louie Gohmert

U.S. Rep. Louie Gohmert, R-Tyler, appears to be exploring a run for Texas attorney general, weighing a late entry into the already crowded primary to unseat GOP incumbent Ken Paxton.

Gohmert was set to make a “very important” campaign announcement Tuesday morning in Tyler, and while it is unclear whether that happened, a website surfaced around the same time that claimed he was making an “exploratory” effort in the race. The Texas Ethics Commission said afterward that it received a new campaign treasurer appointment from Gohmert for an attorney general run, one of the first formal steps someone has to take to vie for state office.

[…]

The public rollout of Gohmert’s apparent exploratory committee was messy. He had been scheduled to be in Tyler at 11:30 a.m. to make what was billed as a “very important campaign kick-off announcement.” Around noon, his campaign’s Twitter account tweeted a live broadcast that did not work. After the purported campaign website surfaced on social media, he did not respond to calls and a text message seeking comment.

Gohmert’s district’s office referred questions about the announcement to a campaign email address, which did not respond to multiple messages.

The URL for the website purporting to be about the exploratory effort is not the same as one for another Gohmert campaign website, which still says he is running for Congress.

The more recent website says Gohmert “needs 100,000 citizens to send $100 each (or any other amount to get to $1,000,000) by November 19.” However, the product of 100,000 and $100 is $10 million, not $1 million.

We all know that politics is just performance art these days for the likes of Louie, but it’s still breathtaking to see its execution in the hands of a true master. How could any so-called “artist” even try to compete with this? Truly, we are not worthy.

SCOTx hears Chick-Fil-A case

Missed this last week.

The Supreme Court of Texas heard oral arguments Thursday in the now two-year-old case involving the exclusion of Chick-fil-A city contract in the San Antonio International Airport.

[…]

San Antonio has always maintained that the law should not apply to the contract because it was not the law then and is not retroactive.

“The Fourth Court of Appeals in San Antonio correctly held that the plaintiffs cannot convert Chapter 2400 of the Texas Government Code into a retroactive statute,” said Laura Mayes, spokesperson for the city.

Plaintiffs lawyer Jonathan Mitchell argued to Texas Supreme Court justices that while they agree the contract vote took place prior to the law, several of the city’s actions took place afterwards.

“Anything the city did to put a different vendor in that spot that would have gone to Chick-fil-A is an action to exclude Chick-fil-A from a property — all of that falls under adverse action,” he explained.

Mitchell argued anything as mundane as an email could be considered as an adverse action and qualify as an “allegation” of the new law, which would waive the city’s “governmental immunity.”

The issue for the city’s lawyer, James Daniel McNeel “Neel” Lane, was that plaintiffs never alleged a specific violation; they only now argue that it would be impossible for the city to not have taken an adverse action.

“There has to be an allegation, factual allegation of a violation of the act. There is not here,” he said.

See here for some background; there’s video from the arguments in the story. I know I’m biased here, but the plaintiffs’ argument just sounds stupid to me. But as noted, this case has a connection to the litigation over SB8, as the plaintiffs in this case don’t have an actual loss or injury to claim, just that if there had been a Chick-Fil-A at the airport they would have patronized it. If SCOTx rules on the question of standing, you can see how it might apply to SB8. I figure we’ll know about this one sometime next year.

The employer vaccine mandate is here (and on hold)

Here are the details.

Deadline is Jan. 4: The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.

Workers must get paid time off to get vaccinated: Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.

Employers don’t need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise.

Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.

Health care workers don’t have testing option under separate rule: A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4.

[…]

In the case of the OSHA rule, enforcement will largely fall to companies themselves. With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.

Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site somewhere. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

The company I work for will fall under this mandate. They have been waiting for the official rules before saying what the company policy will be, so I expect to see a communication about that soon. I have a co-worker who is Not Happy about this. I’m sure you can guess how I feel.

How will it affect Texas?

The White House said the new rules preempt any state and local laws, weakening Gov. Greg Abbott’s ban on COVID-19 vaccine mandates, employment lawyers said.

Abbott issued an executive order last month banning any entity in Texas, including private businesses, from requiring anyone to get the COVID-19 vaccine. The new Biden administration rule would void part of the ban, but it would still apply to everyone else in the state, including local governments, school districts and smaller businesses.

[…]

The conflicting vaccine mandates put the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

American Airlines and Southwest Airlines said they would continue requiring employee vaccinations despite Abbott’s new order.

See here, here, and here for some background. As the story notes, the state of Texas has filed a lawsuit against the national mandate for federal contractors, which has not yet had a court date. A day after the updated OSHA rules came out for employers, Texas filed another lawsuit, because of course they did.

Texas Attorney General Ken Paxton sued the Biden administration on Friday over new federal COVID-19 vaccine rules announced the day before, which order big businesses to mandate vaccination against the virus among their employees by Jan. 4 or require regular testing.

The new federal rules preempt state and local laws, including part of Gov. Greg Abbott’s statewide ban on vaccine mandates.

“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” Paxton said in a written statement Friday.

The U.S. Labor Department, which drafted one of the rules, “has only limited power and specific responsibilities,” Paxton said. “This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”

Obviously, I’m not going to take Ken Paxton’s word on that. Texas is not the only state suing over this order, and a little searching led me to this AP story about the other lawsuits, which has some prognostication on the suits’ viability.

Lawrence Gostin, a professor at Georgetown University Law Center and director of the World Health Organization’s center on health law, said the half-century-old law that created OSHA gives it the power to set minimum workplace safety measures.

“I think that Biden is on rock-solid legal ground,” he said.

Critics have taken aim at some aspects of the requirement, including that it was adopted as an emergency measure rather than after the agency’s regular rule-making process.

“This is a real emergency,” said Gostin, who has spoken with the Biden administration about the requirement. “In fact, it’s a national crisis. Any delay would cause thousands of deaths.”

[…]

So far, courts have allowed businesses on their own to require employees to be vaccinated. But Michael Elkins, a Florida-based employment lawyer, said those decisions do not necessarily mean judges will rule the same way when it comes to the federal government’s requirement.

“You may see a federal judge, or a bunch of them, say, ‘This is just overreach,’” Elkins said.

Benjamin Noren, a New York-based labor lawyer, said he thought the rule is likely to be struck down because OSHA was intended to deal with workplace hazards such as chemicals, not a virus. He said OSHA has made 10 emergency rules in the last five decades. Of the six that were challenged, only one survived intact.

“It’s an innovative use by the Biden administration to figure out some way to mandate vaccination in the private sector,” Noren said. “I hope it works. I have doubts.”

We didn’t have to wait long to find out. I started this draft on Friday morning when the story was just the OSHA announcement. By the time I finished the initial draft, the lawsuits were announced, so I added that on. Somehow, I figured there wouldn’t be any more news until the next week, so I waited to publish on Sunday just to spread things out a bit. That turned out to be a poor decision.

A U.S. federal appeals court issued a stay Saturday freezing the Biden administration’s efforts to require workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing “grave statutory and constitutional” issues with the rule.

The ruling from the United States Court of Appeals for the Fifth Circuit comes after numerous Republican-led states filed legal challenges against the new rule, which is set to take effect on Jan 4.

In a statement, Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the rule, which will be enforced by the Occupational Safety and Health Administration (OSHA).

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said. “We are fully prepared to defend this standard in court.”

A copy of the order is here. If you’re thinking it doesn’t say much and stands in stark contrast to the court’s actions on SB8, you’re not alone.

If we ever get around to expanding the Supreme Court, could we maybe give some thought to doing the same to the Fifth Circuit? Because there are some trash judges on that court, and something needs to be done to restore some sense of justice there. The Biden administration has until Monday at 5 PM to file its response, so look for more updates soon. I won’t sit on any of them. WFAA has more.

UT/Trib: Abbott 46, Beto 37

Data point #2, arriving on schedule.

Gov. Greg Abbott has a comfortable lead over potential Democratic challenger Beto O’Rourke, according to a new poll from the University of Texas at Austin and The Texas Tribune.

The survey of registered voters found Abbott with a 9-percentage-point advantage over O’Rourke, 46% to 37%. Seven percent of respondents picked someone else in the hypothetical matchup, and 10% said they have not thought about it enough to have an opinion.

O’Rourke is increasingly expected to challenge the Republican governor for a third term next year, though he has not made an announcement yet.

Both men have vulnerabilities, according to the survey. Abbott’s approval rating has slightly improved since the last poll in August, but it remains underwater, with 43% of voters approving of the job he is doing and 48% disapproving.

O’Rourke, meanwhile, has a well-defined — and negative — image with voters. Only 35% of respondents said they have a favorable opinion of him, while 50% registered an unfavorable opinion. Only 7% of voters said they did not know him or had no opinion of him.

While O’Rourke is widely liked by Democrats and widely disliked by Republicans, his low favorability with independents is hurting his overall showing: Only 22% of them have a positive view of him, while 48% have a negative view.

Abbott’s numbers with independents are nothing to brag about, either. Twenty-seven percent of them approve of his job performance, while 57% disapprove.

O’Rourke’s initial 9-point deficit “is as good a starting point as Democrats are gonna get,” said James Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin.

[…]

One other potential gubernatorial candidate who has captured the attention of the political world is actor Matthew McConaughey. He has teased a possible run for months, without saying which primary he would run in — or whether he would run as an independent.

The poll discovered that the movie star is not universally beloved by Texans. Close to a third of voters — 29% — have neither a favorable nor unfavorable opinion of McConaughey. Thirty-five percent registered a favorable opinion of him, and 24% said they had an unfavorable impression.

Any Democratic candidate will have to contend with a president from their party, Joe Biden, who is deeply unpopular in Texas. In the poll, voters gave him a net approval rating of negative 20 points, with 35% approving of his job performance and 55% disapproving. That is wider than the 11-point deficit that the survey found between the two ratings for Biden in August.

See here for the previous poll result we got, from the Texas Hispanic Policy Foundation. There’s another story about various issue questions, which largely boils down to “Democrats and Republicans disagree on things, and independents sometimes go one way and sometimes go the other”. Neither seems to have a link to their data, so who knows how it all breaks down. I will note that given the existence of that other poll in which Abbott led Beto by one, down nine is not really “as good a starting point as Democrats are gonna get”, but whatever.

This poll also included questions about the primaries, which again suggest that Abbott will win without a runoff, Paxton may win without a runoff, and no one can say what might happen in the contested Dem primaries. Biden’s approval numbers are lousy – it would be very nice if they bounced back a bit – Abbott’s remain bad but are better than they were in September – he may improve just because the Lege isn’t in session, that used to be the pattern for Rick Perry as well – and no one else is above water, consistent with other results. And that’s about all there is to say about this poll.

We have a third Dem candidate for AG

Welcome to the race, Rochelle Garza.

Rochelle Garza

Democrat Rochelle Garza, a former lawyer for the American Civil Liberties Union from the Rio Grande Valley, is running for attorney general after redistricting complicated her campaign to succeed retiring U.S. Rep. Filemon Vela, D-Brownsville.

Garza previously faced off against Attorney General Ken Paxton in the courts in 2017 when she represented an undocumented teenager fighting to get an abortion, which she obtained after a federal appeals court ruled in her favor. Garza said protecting abortion rights is one of her top priorities.

Garza had been campaigning for Vela’s seat for months, but neighboring Rep. Vicente Gonzalez, D-McAllen, recently announced he would seek reelection in Vela’s 34th Congressional District after redistricting made his current seat more competitive for Republicans.

“Given my background, my work, I believe that this race is the right place to be,” Garza said in an interview. “I also believe that if we’re gonna change anything in Texas, it’s gonna have to come at the state level because we’ve seen the damage that the governor, lieutenant governor and attorney general have done to this state and the harm they’ve done to the people.”

“Obviously, I believe Congressman Gonzalez is going to continue to provide good representation to the people of South Texas,” Garza added, “but my fight is gonna be statewide and my fight is gonna be for the people of Texas.”

Garza is launching her attorney general campaign with the support of both Gonzalez and Vela, who said in a statement, “We can trust Rochelle to never forget where she came from and never stop fighting for us.”

Garza joins a Democratic primary for attorney general that already includes at least two candidates: Joe Jaworski, a Galveston lawyer and former mayor of the city, and Lee Merritt, the nationally known civil rights attorney from the Dallas area. The primary is slated for March 1.

[…]

Garza’s campaign is highlighting how she is the only woman and Latina running for attorney general — relevant given that some Democratic groups have been pressing for a more diverse slate of statewide candidates. Last month, Progress Texas and Annie’s List issued a call for more progressive women to run statewide.

Garza had raised about $200K for her now-ended Congressional campaign. I don’t know what the rules are for using that in a state race. I’ve said before that I know Joe Jaworski, and I’ll say again that I’ll be happy with any of these candidates as Ken Paxton’s opponent. It’s not just that the bar to clear to be better than Ken Paxton is several feet belowground, it’s that all three of these candidates are well qualified and would be an infinite step up. Stace has more.

Meanwhile, in Congressional action:

Democrats in the Rio Grande Valley are scrambling to make up for lost time after U.S. Rep. Vicente Gonzalez, D-McAllen, decided to seek reelection in a different district, leaving an open seat in what is expected to be the state’s most competitive congressional race next year.

With less than a month and a half until the candidate filing deadline, Democrats are sorting through their options for a primary that had been an afterthought given the perception Gonzalez would remain in the 15th Congressional District.

[…]

At least two Democrats declared for the 15th District as it became increasingly anticipated that Gonzalez would bail on a reelection bid there, but recruitment is only just beginning.

Civic engagement group LUPE Votes is launching on Monday what it describes as a “people-powered nomination process” — called We the Pueblo — to find a candidate the political organization can champion. The group, whose priorities include Medicare for All and a $15-per-hour minimum wage, is inviting people in the 15th District to nominate someone who “shares the values of working Texans,” said Dani Marrero Hi, a spokesperson for LUPE Votes. She said the group is looking for someone intimately familiar with those struggles and not “from the top 1% of the Valley.”

“We’re tired of establishment Democrats making promises after promises every year, then leaving or abandoning the district, like Vicente Gonzalez is doing, when times get tough,” Marrero Hi said. “When they do that … it leaves our region vulnerable to Republicans to come in and write our story.”

[…]

The clock is ticking. While litigation over the new maps could postpone the primary, the secretary of state’s office confirmed last week that the filing period is still set to begin Nov. 13 and end Dec. 13.

Daniel Diaz, LUPE’s organizing director, acknowledged their efforts are “gonna have to move pretty fast.” LUPE Votes plans to keep its nomination process open for 20 days.

The Democratic field for the 15th District includes at least two candidates so far: Ruben Ramirez, who previously ran for the seat in 2016, and Eliza Alvarado, director of partnerships and career pathways at the Region One Education Service Center, which assists public school districts in Rio Grande Valley and other parts of South Texas. She previously worked for Gonzalez’s predecessor in the 15th District, former Rep. Rubén Hinojosa, D-Edinburg.

In an interview Friday, Alvarado said the 2020 results were a “call to action” and that Democrats were “absolutely” playing catch-up due to Gonzalez’s decision.

“I think that we knew it was coming, but that didn’t mean that we were sure that was going to happen,” Alvarado said. “Definitely stepping up and having to make up for lost time is something that’s going to be really important. I hope this race draws attention from the national party … and the state party, and they put funds into this race because it’s really important. Hidalgo County has been the Democratic stronghold since the 1800s, and this is something that’s not going to be given up lightly.”

See here for some background. I might have liked to see Rochelle Garza choose to run in CD15 instead, but I don’t get to make that decision. I don’t have any insight into this race or who the best person for it might be, I just agree with the assessment that we better figure it out quickly. This is going to be a top national race whether we like it or not.

Hispanic Policy Foundation poll: Abbott 44, Beto 43

At long last, some new polling data, and this one is eye-catching.

A year before they could meet in a showdown for the state’s top office, Gov. Greg Abbott and expected Democratic challenger Beto O’Rourke are virtually tied, according to new polling from the Texas Hispanic Policy Foundation (TxHPF).

The poll shows Republican Abbott leading O’Rourke, 44% to 43% among voters who went to the polls in 2020, with the rest of respondents unsure or supporting minor-party candidates. The race is virtually unchanged if actor Matthew McConaughey, whose name has come up in gubernatorial-race speculation, appears on the ballot as an Independent candidate.

Among all registered voters, Abbott is the choice of 43% and O’Rourke of 42%, with 12% unsure of whom they would vote for and 3% choosing minor party candidates. The results remain nearly identical if the population is restricted to 2020 presidential election voters, with Abbott preferred by 44% and O’Rourke by 43%, with 10% unsure and 3% supporting minor party candidates.

O’Rourke, a former Congressman from El Paso who previously ran for president and for a seat in the U.S. Senate, has not formally announced his candidacy for governor but is widely expected to run.

The poll found that 49% of Hispanic respondents favor O’Rourke and 31% favor Abbott. Hispanics who are evangelical Protestants are more likely to vote for Abbott (42%) than O’Rourke (37%), while Catholic Hispanics and non-religious Hispanics overwhelmingly favor O’Rourke (56% and 46%) over Abbott (29% and 28%).

Before taking on the Democratic nominee, Abbott must make it through a competitive Republican primary. The new polling shows the two-term governor with an overwhelming lead in the GOP race: Abbott is ahead of his next-closest rival, former state Republican Party Chairman Allen West, by 51 percentage points, with 64% of the most likely GOP primary voters intending to vote for Abbott compared to 13% for West.

“Governor Abbott has shored up his right flank and stands firmly on solid ground with Republican primary voters,” said Jason Villalba, Chairman and CEO of the TxHPF. “But based on our data, it appears that he has achieved this objective by cutting deeply into his support with Texans who vote in the general election. Much can happen over the course of the year, but these numbers show that not only can we expect a competitive general election, but that Abbott’s shift to the hard right may have imperiled his governorship.”

[…]

The TxHPF has previously established its credibility in measuring public opinion in Texas. In August 2020, the TxHPF was the first major research organization to forecast that then-President Donald Trump was running relatively well among Texas Hispanics. Those survey results proved to be strikingly accurate on Election Night 2020, when Trump performed stronger than previous Republican candidates in heavily Hispanic regions of the state.

For the survey 1,402 respondents were interviewed online between October 14 and 27, with a margin of error of +/- 2.6%.

The data they provide can be found here – it doesn’t provide the individual questions or the totals for each, so make of it what you will. The topline numbers are the Abbott/Beto number, which has Abbott up 44-43, and a three-way race that includes Matthew McConaughey as an independent, which goes 40/37/9, a much less sexy result that those idiot polls that had Abbott versus McConaughey straight up without ever acknowledging that the only way that could happen is if our boy ran in and won the Democratic primary first.

As far as I can tell, the last straight up horse-race poll result we have is from September, in which Abbott led 42-37. Both that one and the other most recent result, from July, which had Abbott leading Beto 45-33, are from the DMN/UT-Tyler series that included those dumb Abbott/McC matchups. Since then what we’ve had is multiple polls that have highlighted Abbott’s declining approval rating, but basically no other election polls. I have to assume that Beto will indeed make official his candidacy, at which point I suspect we’ll get all the polling we can handle.

The one thing this poll doesn’t have that I would have liked to have seen was an approval rating for President Biden, which has also tanked since late spring, matching the national trend. This poll does a very nice job of taking a closer look at Latino response to Abbott and Beto, and boy would it have been cool to see those same questions about Biden and maybe even that other guy, to perhaps provide some extra context about the last election and what we might see this time around. Alas.

They also polled the primaries, with Abbott well in the lead and Ken Paxton just above fifty percent, thanks mostly I’d say to none of the other candidates being remotely well known to the voters. Same for the Ag Commissioner race, and the Dem primaries for Lite Guv and Attorney General, which is now out of date anyway. Primary polling is a lot harder to do, and the fact that many candidates aren’t well known doesn’t help. I’d say Abbott is in good shape to win without a runoff, Paxton may be able to avoid a runoff, and the rest isn’t worth worrying about.

As always, this is one poll, so don’t put too much weight on it. I do think we’ll start to see more results, and once that happens I’ll add a new widget on the sidebar to track them all. That has sure come in handy for me when I’ve had to trawl through the archives here to provide comparisons to past numbers. Let’s get this thing on the road already. The Texas Signal and the Chron have more.

Of course Texas sues over federal vaccination mandates

On brand. Always on brand.

Attorney General Ken Paxton, on behalf of the state, sued the Biden administration on Friday over its coronavirus vaccine mandate for federal contractors.

The federal requirement, which is set to take effect Dec. 8, calls on all federal workers and contractors to be vaccinated against COVID-19. The Texas lawsuit comes after similar suits filed by Florida and Georgia, along with several other states.

“The Biden Administration has repeatedly expressed its disdain for Americans who choose not to get a vaccine, and it has committed repeated and abusive federal overreach to force upon Americans something they do not want,” Paxton said in a statement. “The federal government does not have the ability to strip individuals of their choice to get a vaccine or not. If the President thinks his patience is wearing thin, he is clearly underestimating the lack of patience from Texans whose rights he is infringing.”

Paxton and fellow Republican Gov. Greg Abbott have been at war with local and federal officials over vaccinate mandates. Earlier this month, Abbott expanded an executive order to block the requirement for any entity in Texas, including health care facilities and private businesses. He previously banned cities, counties, school districts and state agencies from requiring vaccines. Lt. Gov. Dan Patrick has tweeted that vaccination “should never be forced on anyone by the state or a private employer.”

The lawsuit alleges the Biden administration acted unconstitutionally in drafting the vaccine mandate policy. It also argues that the administration required congressional approval to enforce it.

[…]

On Friday, the U.S. Supreme Court on Friday declined to block Maine’s vaccine mandate, though that request came from a group of health care workers who argued their religious liberty rights had been violated because the mandate did not allow for a religious exemption. The highest court has also rejected challenges to vaccine mandates at Indiana University and in a New York City school system.

I took a quick look around Twitter at the national and constitutional lawyers that I follow who often weigh in on this sort of thing, and as of Saturday night none of them had said anything about this. Maybe they all have better things to do with their time, and maybe they think this isn’t worth commenting on. I don’t know. But my sense is that this is mostly a for-show lawsuit, to impress the ravening hordes, and is unlikely to get anywhere. I could be wrong. The one thing I will note is that there are already a lot of employer mandates out there, and they are both getting people vaccinated and making more people comfortable with the idea. So whatever does happen, it may not matter all that much anyway.

Caught between a mandate and a madman

I have sympathy for the schools.

Many Texas universities — which collectively hold billions of dollars in federal contracts — are wrestling with how to navigate the Biden administration’s mandate that all federal contractors be vaccinated by Dec. 8 in a state that bans vaccine mandates.

While more public universities across the country are announcing that all employees must be vaccinated to comply with the federal requirement, several Texas public universities — all managed by Gov. Greg Abbott appointees — told The Texas Tribune they are still evaluating the executive order, which applies to new federal contracts of $250,000 or greater and awarded as of Nov. 14 or existing contracts that have been renewed as of Oct. 15.

“This is unprecedented,” said Michael LeRoy, a labor law expert at the University of Illinois College of Law. “There have been conflicts between the state and federal government, but not at this magnitude with this kind of money on the line.”

LeRoy believes the issue will be resolved in the courts because of the two conflicting issues at the center. State universities receive funding from the state and federal level but they are run by a board of regents appointed by the Texas governor.

While LeRoy said it’s unlikely the federal government will immediately terminate a grant if universities don’t comply, he said a university’s actions could impact future bids for federal grants. The federal government could begin to give notice to rescind a grant, he speculated, but that is a lengthy process. For now, universities are awaiting guidance from their own lawyers.

“… [T]he White House has been clear that noncompliance will not be excused, even in situations where state law contradicts the federal directive,” University of Houston spokesperson Shawn Lindsey told the Tribune in a statement. “It’s an extremely complicated situation that requires further analysis.”

Texas Tech University is working with its lawyers to determine if there are contracts that would trigger the vaccination requirement, school officials said in a statement. Texas Tech is also requesting guidance from the Texas attorney general’s office.

A Texas A&M University System spokesperson said they are also still evaluating the order. The A&M system has about 500 contracts with the federal government worth $2 billion, most of which are tied to the flagship university in College Station.

A statement from the University of Texas System revealed how universities are trying to appease both federal and state leaders.

“We will endeavor to comply with federal vaccine requirements for specific, covered individuals to protect these investments in our state,” spokesperson Karen Adler said in a statement. She then went on to say the system would provide exemptions for those with religious beliefs and “we will make every effort to accommodate employees’ personal situations.”

I think we can all guess what the AG’s office will say to Texas Tech, but the ritual must be observed. We’re all awaiting final guidance from OSHA, which is writing the rule that will implement that executive order. After that is when the lawsuits will fly. Not much else to say at this point, other than I do not envy any of these university officials the task they have before them.

SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

[…]

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.