Emergency powers reform on the table this legislative session

One item of significant prominence entering this legislative session was how much the legislature would try and peel back emergency power authority from the executive branch.

Governor Greg Abbott has exercised near carte blanche authority to suspend laws and legislate via executive order during the pandemic — but he indicated this week some consideration for curtailing that power.

In an interview with the Texas Tribune on Tuesday, Abbott said his office will “[offer] up some legislation ourselves on ways to address this going forward.” The governor has pulled his authority for the executive-issued regulations on commerce and movement from the Texas Disaster Act of 1975.

That law, which the pandemic yanked back to relevance from contemporary obscurity, bolstered the governor’s and local executive officials’ ability to respond to natural disasters. Originally aimed at regional disasters, like Hurricane Harvey, this is the first time the TDA’s powers have been applied across the whole state.

Legislators on both sides of the aisle have criticized the lack of space made for legislative input during the interim. Members of the conservative Texas Freedom Caucus frequently punched back on social media, as have some Democrats.

Already, a bevy of legislation has been filed aimed directly at those emergency powers including Rep. Rafael Anchia’s (R-Dallas) proposed constitutional amendment requiring the legislature to be called into session in response to a disaster upon petition of two-thirds of each chamber. Addressing the issue is also among the Freedom Caucus’ legislative priorities.

Almost a year since the first disaster declaration, the table is set for some reform, but Abbott pumped the brakes on any sweeping changes. The governor said he is open to adjustments so long as they do not come at the expense of “flexibility to move swiftly.”

In his State of the State speech this week, Abbott skirted the edges of emergency powers reform, only honing in on localities’ shutdowns of religious activities. “[S]ome government officials across the country shut down churches during the pandemic. Even in Texas, some local officials tried closing churches. That is wrong. We must ensure that freedom to worship is forever safeguarded,” he emphasized.

He also touched on business closures, reemphasizing something he’s said of late, that more shutdowns are out of the question. At the time of his comment, businesses in numerous counties across the state were restricted to varying degrees due to the state’s new operative metric contingent on whether hospitals were at 15 percent of COVID-19 bed capacity.

Shortly thereafter, nine more counties were restricted.

While implementing restrictions throughout the pandemic, Abbott has also meticulously cut regulations to expedite supply chain distribution.

The governor told the Tribune concerning regulation that in a pandemic, “sometimes it’s hours that matters, especially sometimes in responding to demands that are coming from the White House where you basically have a 24-hour time period to respond to it.”

Since last March, Abbott has often offloaded much of the decision-making to local officials, while occasionally pulling it back. 

While no governor has been in such a position since the TDA’s passage, Abbott’s actions have highlighted a blind spot the legislature of the 1970s did not foresee. Just as with the federal government, Texas’ legislative branch is not designed to be a coequal, let alone submissive, branch. It is meant to be the supreme branch, with checks and balances available to rein in its abuses.

The broad use of emergency powers provided just another unexpected twist to 2020. Even more unexpected would be a governor signing on to a limitation of his own authority, but Abbott’s comments indicate there remains a chance.

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