The Volokh Conspiracy

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El Paso County Tighter Shutdown Order Preempted by Texas Governor's Order


So the Texas Court of Appeals held yesterday, in State v. El Paso County (opinion by Chief Justice Jeff Alley, joined by Justice Gina Palafox); an excerpt:

If the disaster de jure was a hurricane on the gulf coast, there would have to be a tie-breaker if the governor intended for people to evacuate in one direction but a local county judge thought it better to send people in the exact opposite direction. Pick whatever type of disaster you might—from toxic chemical releases, earthquakes, oil pipelines leaks, to pandemics—and there could be good faith differences of opinion on the proper response.

Because there must be a final decision-maker, the Legislature inserted a tie breaker and gave it to the governor in that his or her declarations under Section 418.012 have the force of law. El Paso County can point to no similar power accorded to county judges. And while it is not for us to judge the wisdom of the Legislature's choice, the idea of one captain of the ship has intuitive appeal. Did the Legislature really intend for the chaos of a system that allows for 254 different county responses to a statewide disaster? It certainly allowed county judges [the Texas term for the county executive-EV] to lead local disasters, but that is not what Texas is facing.

And here's an excerpt from Justice Yvonne Rodriguez's dissent:

In my view, the Governor has taken a law that was meant to help him assist local authorities by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities as a bureaucratic obstacle to the coronavirus response plan he has chosen from Austin. This is truly extraordinary and completely flips the structure of the Texas Disaster Act on its head….

The Attorney General maintains, in times of emergency, the Governor is the ultimate decision-maker, that he is a unitary executive with power over all levels of government, that he alone may decide the fates of people in 254 counties and 12,000 cities, that local elected leaders may act only because he gives them the authority, and he can take away that authority if he believes their approach as to how they address disaster relief is, in his view, wrong. The only way any of that can be true is if courts ignore critical Texas constitutional history, disregard the structure and purpose of the Texas Disaster Act, read words into a statute that are simply not there, and discard important restrictions and qualifications on the Governor's power in the name of expediency and a belief that his noble ends justify its unlawful means

I can't speak to who's right here, but I thought I'd flag the opinions for our readers.

UPDATE: I at first noted in the quote (in brackets) that "disaster de jure" may have been intended to be "disaster du jour," but some commenters plausibly suggested that it might have indeed been intended as "de jure" in the sense of "the disaster declared by law to be such"; I've therefore removed the bracketed note.