Justice Gorsuch on covid "emergency" orders

[oldag]

He then gave examples of how the U.S. may "have experienced the greatest intrusions on civil liberties in the peacetime history of this country."

"Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too. They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent," he said.

At the federal level, he highlighted not only immigration decrees but vaccine mandates, the regulation of landlord-tenant relations and pressure on social media companies to suppress "misinformation."

He then even turned the spotlight on the courts: "In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation."

https://www.foxnews.com/politics/go...-covid-era-fear-desire-safety-powerful-forces

 

[busykngt]

Of course he’s spot on with his analysis.

But IMHO, the SCOTUS needs to get involved with the President’s ability to make up laws out of thin air. We call these ‘Executive Orders’ or ‘Presidential Mandates’. They are not necessarily a recent, modern invention - they’ve been around awhile. But historically they haven’t been used to the extent the last several presidents have abused the process.

Per The Constitution, federal law is supposed to originate in the U.S. House of Representatives… NOT the Executive Branch. And yet the way EOs are treated, they carry the force of law. These mandates are typically used to bypass or otherwise circumvent laws that would never be agreed to by the Congress.

Unless strict use limits are imposed by the Legislative Branch AND backed up by the Judicial Branch, we are ultimately headed toward an Executive dictatorship as our third Branch of government.

 

[toddnjoyce]

How appropriate.

Governor Abbott Renews COVID-19 Disaster Declaration In May 2023

gov.texas.gov

 

[MountainGirl]

How appropriate.

Governor Abbott Renews COVID-19 Disaster Declaration In May 2023

gov.texas.gov

From his Declaration: (bolding mine)

"WHEREAS, ending the disaster declaration would terminate the executive orders that protect Texans’ freedom by suspending the power of local governments to require masks, compel vaccinations, and close businesses; and

WHEREAS, I intend to keep these executive orders and suspensions in place until the Legislature can enact laws this session to prohibit local governments from imposing restrictions like mask mandates and vaccine mandates; and

WHEREAS, renewing the disaster declaration in no way infringes on the rights or

liberties of any law-abiding Texans; and

WHEREAS, under the Texas Disaster Act of 1975, a state of disaster continues to exist in all counties during Texas’ successful economic recovery from COVID-19;

NOW, THEREFORE, in accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I do hereby renew the disaster proclamation for all counties in Texas.

Pursuant to Section 418.017, I authorize the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Under the terms of Executive Orders GA-38, GA-39, and GA-40, all of which remain in effect by virtue of this renewal, local governments are divested of any lawful authority to subject Texans to mask mandates, vaccine mandates, or business-closure mandates. As a matter of state law, COVID-19 cannot justify those local intrusions upon personal liberty..."

If that's all he's gonna do with his extension - I've no problem with it.

 

[wiredgeorge]

I think it is great that everyone had to wear masks. Almost all my friends are a lot easier to look at.... Doubt masks had any benefit of mitigating the china flu but just not having to look at ugly kissers was a real plus!

 

[toddnjoyce]

…If that's all he's gonna do with his extension - I've no problem with it.

The Texas Disaster Act doesn’t give any power to the local governments if there’s no emergency/disaster declaration.

In short, Hot Wheels’ declaration is what the problem is. The second problem is the Texas Disaster Act allows local and state government to suspend any law or regulation it feels like.

We are three years past COVID; why does an emergency declaration still exist?

 

[etmo]

The Texas Disaster Act doesn’t give any power to the local governments if there’s no emergency/disaster declaration.

In short, Hot Wheels’ declaration is what the problem is. The second problem is the Texas Disaster Act allows local and state government to suspend any law or regulation it feels like.

We are three years past COVID; why does an emergency declaration still exist?

I don't see the Act giving any power to local governments under any circumstances.

Maybe you saw something I missed? It seems to only focus power with the governor, local and state legislative bodies become powerless by comparison.

 

[benenglish]

I'm tempted to merge this thread into the main Covid thread. I will if it sticks to talking about Covid-specific items.

However, if this thread covers the rise of authoritarianism and the mechanisms by which it is imposed, using Covid as only an instructive example, it could be a very interesting thread.

Just a word to the wise.

 

[MountainGirl]

The Texas Disaster Act doesn’t give any power to the local governments if there’s no emergency/disaster declaration.

In short, Hot Wheels’ declaration is what the problem is. The second problem is the Texas Disaster Act allows local and state government to suspend any law or regulation it feels like.

We are three years past COVID; why does an emergency declaration still exist?

I yield to you on this, as I have not read the Disaster Act itself. My take on his declaration was to prevent local govts from making their own mandates.

Hmmm. Guess I cant have my cake (no authoritarian centralized govt) and eat it too (Local authority rules). Oh well.

 

[toddnjoyce]

I don't see the Act giving any power to local governments under any circumstances.

Maybe you saw something I missed? It seems to only focus power with the governor, local and state legislative bodies become powerless by comparison.

Without going in to too much boring history, I mentioned Texas Disaster Act without context. There were two TDAs, one in 1972 and another in 1975. The 1975 version gave us much of what is Texas Government Code Chapter 418, Emergency Management. That chapter is the authority Abbot cites as his authority to declare a disaster; specifically TGC 418.014 and the associated powers are in Subchapter B. Local governments get their emergency powers in TGC 418, Subchapter E, to include the ability to declare local disasters, among other things.

Sec. 418.108. DECLARATION OF LOCAL DISASTER. (a) Except as provided by Subsection (e), the presiding officer of the governing body of a political subdivision may declare a local state of disaster.

(b) A declaration of local disaster may not be continued or renewed for a period of more than seven days except with the consent of the governing body of the political subdivision or the joint board as provided by Subsection (e), as applicable.​

(c) An order or proclamation declaring, continuing, or terminating a local state of disaster shall be given prompt and general publicity and shall be filed promptly with the city secretary, the county clerk, or the joint board's official records, as applicable.​

(d) A declaration of local disaster activates the appropriate recovery and rehabilitation aspects of all applicable local or interjurisdictional emergency management plans and authorizes the furnishing of aid and assistance under the declaration. The appropriate preparedness and response aspects of the plans are activated as provided in the plans and take effect immediately after the local state of disaster is declared.​

(e) The chief administrative officer of a joint board has exclusive authority to declare that a local state of disaster exists within the boundaries of an airport operated or controlled by the joint board, regardless of whether the airport is located in or outside the boundaries of a political subdivision.​

(f) The county judge or the mayor of a municipality may order the evacuation of all or part of the population from a stricken or threatened area under the jurisdiction and authority of the county judge or mayor if the county judge or mayor considers the action necessary for the preservation of life or other disaster mitigation, response, or recovery.​

(g) The county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area.​

(h) For purposes of Subsections (f) and (g):​

(1) the jurisdiction and authority of the county judge includes the incorporated and unincorporated areas of the county; and​

(2) to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails.​

(i) A declaration under this section may include a restriction that exceeds a restriction authorized by Section 352.051, Local Government Code. A restriction that exceeds a restriction authorized by Section 352.051, Local Government Code, is effective only:​

(1) for 60 hours unless extended by the governor; and​

(2) if the county judge requests the governor to grant an extension of the restriction.​

Note sub-para (i) gives Fireworks more protections that local citizens. How that got in there is beyond me, but for those too lazy to follow the link, here it is:

Sec. 352.051. REGULATION OF RESTRICTED FIREWORKS. (a) For the purposes of this section the following definitions shall apply:
(1) "Restricted fireworks" means only those items classified under 49 C.F.R. Sec. 173.100(r)(2) (10-1-86 edition), as "skyrockets with sticks" and "missiles with fins".
(2) "Drought conditions" means the existence immediately preceding or during the fireworks season of a Keetch-Byram Drought Index of 575 or greater.
....

But, that's not as clean as what actually happened. The order of operations that led to local .govs going down the path of masks was hotwheels declaring a state of disaster on Mar 13, 2020. Near simultaneous with that, about 237 of the 254 counties issued their own disaster declarations. Most of those invoked TGC 418.108(d) as the authority for their emergency management plans to mitigate a public health disaster and backed it up with State Health Services' separate Public Health Disaster declaration under Health and Safety Code section 81. Note both state and local level disaster declarations are time limited, and for good cause. In the discussions of the first Texas Disaster Act, it was intentional for these declarations to be limited since the powers were considered extraordinary and the implicit expectation was a governor to would call a special session after 30 days. I won't go into the shit show of emergency management soup that was the first sixty days or so of Abbot's Great Riddle, but instead now focus back on the May 15 declaration. Let's look at what it really means.

WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas;

Ask yourself if Covid 19 really poses an imminent threat of disaster for all counties in the state of Texas.

WHEREAS, Executive Orders GA-13, GA-37, GA-38, GA-39, and GA-40 remain in effect with “the force and effect of law” under Section 418.012 of the Texas Government Code; and

Do you know what each of those orders addresses? Are the really necessary?

WHEREAS, ending the disaster declaration would terminate the executive orders that protect Texans’ freedom by suspending the power of local governments to require masks, compel vaccinations, and close businesses; and

Here's the argument. Abbot says if he ends the *disaster*, then the counties can force you to wear a mask. Well, they can't really; and they never had the power to make you do so in the beginning if you go back to 418.108. For example, the City of San Antonio has an indefinite Declaration of Disaster and Public Health Emergency. That is flat out prohibited in 418.108(b); local governments don't have the authority to indefinitely declare a disaster, and if they don't have that authority, then the certainly don't have the unenumerated authority to do many of the other things, to include wearing a mask, those declarations backed.

Given all that, the only reason hotwheels continues to extend the 'disaster' is for some weird sense of exercising the power of an intentionally designed weak public office in the name of politics. Hell, there's been two regular sessions and three years of time for special sessions. If it were that important to solve the problem, you'd think he'd have done something about that. Hell even the Republican Party of Texas and some legislators have publicly said that.

I yield to you on this, as I have not read the Disaster Act itself. My take on his declaration was to prevent local govts from making their own mandates.

Hmmm. Guess I cant have my cake (no authoritarian centralized govt) and eat it too (Local authority rules). Oh well.

Trust but verify; never take a man's word at face value. The 1876 Constitution deliberately designed a weak state government after the disaster that was the Carpetbagger's Constitution. This state is supposed to be governed at the local county level and the 'state' is supposed to enable it. Hotwheels is the one fighting that.

 

[MountainGirl]

.....

Trust but verify; never take a man's word at face value. The 1876 Constitution deliberately designed a weak state government after the disaster that was the Carpetbagger's Constitution. This state is supposed to be governed at the local county level and the 'state' is supposed to enable it. Hotwheels is the one fighting that.

Thank you for your detailed response - AND for that link ^^^. I have a hard copy of the Constitution, and it will be really helpful to read the TSHA submission. Now go enjoy your whiskey-coffee.

 

[etmo]

Here's the argument. Abbot says if he ends the *disaster*, then the counties can force you to wear a mask. Well, they can't really; and they never had the power to make you do so in the beginning if you go back to 418.108. For example, the City of San Antonio has an indefinite Declaration of Disaster and Public Health Emergency. That is flat out prohibited in 418.108(b); local governments don't have the authority to indefinitely declare a disaster, and if they don't have that authority, then the certainly don't have the unenumerated authority to do many of the other things, to include wearing a mask, those declarations backed.

I think you have correctly identified the crux of it, but my reading of 418.108(b) leaves me believing Abbot is right, and a local jurisdiction can have their indefinite disaster if they want it. Here's the full text of 418.108(b):

(b) A declaration of local disaster may not be continued or renewed for a period of more than seven days except with the consent of the governing body of the political subdivision or the joint board as provided by Subsection (e), as applicable.

(emphasis mine)

So a local political subdivision only needs the consent of it's governing body in order to have never-ending disaster, as I read it.
Where do you differ on that?

 

[toddnjoyce]

I think you have correctly identified the crux of it, but my reading of 418.108(b) leaves me believing Abbot is right, and a local jurisdiction can have their indefinite disaster if they want it. Here's the full text of 418.108(b):



(emphasis mine)

So a local political subdivision only needs the consent of it's governing body in order to have never-ending disaster, as I read it.
Where do you differ on that?

Here’s how I read 418.108.

1. The local executive can declare a local disaster all by himself. This declaration is time limited to 7 days in duration.

2. For a declaration to exceed a period of 7 days, the local governing body must consent to it. Indefinite, by it’s definition means an undefined period, so it could be less than or more than seven days; 418.108(b) bounds the period as seven days, so without a defined period, the declaration dies after 7 days unless renewed or extended in up to 7-day increments.

It is unfathomable to believe the intent of TDA72 & 75 was to enable a local government to exercise extraordinary powers, to include forcible evacuation and controlled ingress/egress for an indefinite period, precisely because there is no expiration or limit to those powers.

As for SAT, I linked the June 2020 declaration with the Indefinite period. Now, for the rest of the story.

San Antonio Leaders Reflect on End of the COVID-19 Declaration

San Antonio Leaders Reflect on End of the COVID-19 Public Health Emergency Declaration

www.sa.gov

There is no public record that the “indefinite” order has been withdrawn or rescinded, just a hidden blurb dropped in the city’s news release section; does that mean the order is really no longer in effect? If it’s not in effect, then why doesn’t City of San Antonio clearly state that on their COVID declarations and orders page? They did that for the federal disaster end declaration.

Declarations & Orders

Get information on the official orders, declarations, and response plan..

covid19.sanantonio.gov

All of this is to underscore the state and local .govs have used the disaster declarations to exercise powers they gave themselves, not given to them in the statutes.

If hotwheels really cared about you getting your rights trampled on by the various local .govs, why hasn’t the he had Paxton take these cities to state court? Why hasn’t he called a special session or make this a legislative priority? Better yet, ask yourself why he needs the ability to indefinitely suspend laws in the state of Texas?

 

[toddnjoyce]

Likely the most appropriate place for this:

Abbott let his emergency order — thought to be the last statewide emergency order in the entire country — expire in June after legislators passed the new law, which takes effect Sept. 1.

Texas Supreme Court says Gov. Greg Abbott’s COVID ban on local mask rules was lawful

Several of Texas’ largest cities sought to put in place mask requirements, which Gov. Greg Abbott overturned. The ruling is a legal win for Republicans in Austin their ongoing symbolic fight with cities, often run by Democrats.

www.texastribune.org

 

[etmo]

Yeah, that seems very straightforward. The disaster gave Abbott all the power he wants, and the democrats are whining about it.

Quite a week for court rulings!