Governor Greg Abbott has a Pen, a Phone, and a Tank?
With the news of a Texas sheriff from Ector County using an armored military vehicle to SWAT-raid a peaceful, albeit armed, protest and arrest bar-owner Gabrielle Ellison, who dared to defy a business shutdown order, a public consensus on the use of executive orders is greatly needed.
What's in the Texas water?
Shelly Luther, a business-owner from Dallas, was recently sentenced to seven days in jail for opening her salon — and refusing to apologize to the court — in defiance of Governor Greg Abbott's executive shutdown order. At sentencing, Judge Eric Moyé accused Luther of being "selfish" even though the White House guidelines were followed at her workplace. Ms. Luther is quoted saying, "You have rights to feed your children and make income. And anyone that wants to take away those rights is wrong." Those words ring true.
In fairness to Gov. Abbott, he apparently didn't realize the manner in which violation of his executive orders would be enforced and punished. The governor immediately called for Luther's release and made statements condemning the judge for jailing Luther:
As I have made clear through prior pronouncements, jailing Texans for non-compliance with executive orders should always be the last available option. Compliance with executive orders during this pandemic is important to ensure public safety; however, surely there are less restrictive means to achieving that goal than jailing a Texas mother.
There are also less restrictive means to protect Texans from the virus than business shutdown orders.
Gov. Abbott's attorney general, Ken Paxton, was equally outraged. He sent a letter to the judge and reproved him for his "shameful abuse of judicial discretion."
What the jailing of Luther illustrates, however, is not a problem with the Judiciary, but a problem with arbitrary edicts (executive orders) being imposed on citizens without due process, legislative representation, or consent. As unfair and slanted as this particular judge may be, it's highly unlikely that the Texas Supreme Court would rule that he had abused his discretion because he had up to 180 days of jail time under Texas law to work with.
We had a revolution against the British Crown a few centuries ago precisely because the American colonists didn't care much for being governed without their consent.
Since we don't have kings in America who issue decrees, executive orders started as directives to manage the Executive Branch of government. George Washington's first executive order (of the eight issued in his two terms) was a directive to the department heads of the Executive Branch to produce reports on the affairs within their respective areas of responsibilities.
The U.S. Constitution makes the president the commander-in-chief and states that the president has executive power, but it does not mention "executive orders." The closest language we have is Article II, Section 3, which gives the president the duty to faithfully execute the laws.
It is safe to say the executive does not make laws for the general population, but executes them.
President Abraham Lincoln suspended the writ of habeas corpus by executive order in 1861, citing exigent circumstances. Though Lincoln's order was ruled unconstitutional by Chief Justice Roger Taney, the president at least relied on the Constitution's language: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The problem was that only Congress has the power to suspend it. Congress went on to pass a law in 1863 authorizing Lincoln to suspend the writ during the Civil War.
The guiding principles of executive orders apply equally to the governors of the individual states.
The initial question when assessing a gubernatorial executive order is whether the particular state Legislature has passed law defining the power of the governor in context of executive orders.
A cursory Texas search brings up "Government Code, Title 4. Executive Branch, Subtitle B. Law Enforcement and Public Protection, Chapter 418. Emergency Management, Subchapter A. General Provisions."
Among other things, Sec. 418.002 says: "The purposes of this chapter are to: (1) reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, or hostile military or paramilitary action[.]"
Section 418.012 says, "Under this chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law." In the context of executive orders, the law gives the governor the responsibility "for meeting the dangers to the state and people presented by disasters."
In our context, the governor's authority is based upon dangers presented by disasters and catastrophes. The question of whether the state is currently experiencing a statewide disaster or catastrophe under Texas law is merely the threshold; the answer, even in the affirmative, doesn't resolve the question of whether the business lockdown order proclaimed by Greg Abbott is valid.
Interestingly, the Texas governor may "commandeer" private property, if necessary, to "cope with a disaster," but that power is subject to compensation of the citizens harmed. A shutdown order is effectively the government commandeering the relevant businesses without just compensation.
It turns out that the Texas law specifically protects property rights and Second Amendment rights. Section 418.003 prohibits the "seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition[.]"
The right to bear arms is a constitutional right and arguably an unalienable right.
The right to work to earn a livelihood is without question an unalienable right. The government cannot take away that right. Many in government want to take away the right to bear arms, but their efforts against the Second Amendment have led to conditions, not elimination. Likewise, the government has no power to suspend or eliminate the right to earn a living. With regard to the right to bear arms, the Second Amendment could, at least in theory, be abolished. On the contrary, prior to lawfully suspending the right to produce income to survive, the government would have to first repeal the "Laws of Nature and of Nature's God."
A silver lining may be that the COVID-19 pandemic has provided us the opportunity to consider the lawful reach of executive orders. It is one thing to impose reasonable conditions of employment (masking, sanitizing, etc.) in perilous circumstances. It is quite another to announce complete shutdown decrees from on high.
The use of police seizure and arrest force in context of enforcing economic and ambient lockdown orders will lead to mistrust and hostility toward law enforcement. Sentencing people to jail for exercising an unalienable right will cause the same sentiments toward the Judiciary. Based on much of the commentary from social media, several state and local governments are currently doing irreparable damage to the essential element of public trust.
Monte Kuligowski is a Virginia attorney.