Was the Constitution a casualty of the COVID-19 pandemic? One federal judge warned that it could be. Striking down a ban on indoor church gatherings in North Carolina, Judge James C. Dever III ruled that “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.”
Here in Texas, the Texas Disaster Act of 1975, codified as Texas Government Code Chapter 418, grants special authority to the governor and certain local officials in times of disaster. These extraordinary powers enabled officials to impose a wide variety of rules and restrictions in response to COVID-19. Some jurisdictions exercised that authority in ways that were troubling. Across Texas, the pandemic rules were at times confusing, contradictory and inconsistent.
Events over the last year make plain that Chapter 418 needs reform. The aim of this effort must be to better balance government power with individual liberty in times of crisis. Two bills, SB 1025 and SJR 45, would make critical changes to the law by clarifying the roles of the executive and the legislature during times of disaster, creating a new legislative check against executive overreach, and making certain protections explicit.
Under the proposed legislation, only the Texas Legislature would have the authority to suspend a provision of the Code of Criminal Procedure, the Penal Code, or the Election Code during a declared state of disaster. The Legislature alone is responsible for creating, voiding, and nullifying laws. Governors, county judges and mayors aren’t.
The proposed bill language clarifies that only state lawmakers can “renew or extend the governor’s state of disaster declaration.” By effectively limiting a unilateral statewide disaster declaration to a 30-day period, this provides a legislative check on executive authority that becomes operative after a reasonable amount of time.
The bills also say that only the legislature can renew or extend a state of disaster. In order to continue a statewide disaster declaration beyond 30 days, a governor would be required to convene a special session of the legislature.
Finally, the bills prohibit the governor from declaring a new state of disaster based on the same or similar circumstances covered under a prior declaration that was not renewed by the Legislature.
In concert, these provisions seek to enshrine a more robust role for the legislative branch in times of disaster. And to give the new rules some teeth, the bills have included an enforcement mechanism that grants any sitting legislator at the time of the disaster standing to challenge the executive branch at the Texas Supreme Court, should a governor refuse to convene a special session of the legislature.
Once convened, the Legislature would have the authority to terminate or renew orders as it deems appropriate.
Senate Bill 1025 and Senate Joint Resolution 45 represent a significant improvement over the status quo. Through various provisions, the legislation reforms emergency management powers in a way that better balances the competing needs for decisive action in a time of crisis and the preservation of individual liberty.
The measures also strengthen our existing system of checks and balances, which is at the very heart of our constitutional republic. The concept’s importance is perhaps best captured by James Madison, who said: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”