The battle over insuring that we never experience pandemic tyranny of the sort visited upon Texans during the last year is heating up in the Texas legislature. It is a battle that goes to the fundamentals of what kind of government our Constitution requires and where power lies in our republic.
THE GRIEVANCES WE NEED TO REDRESS
First, let’s review what we have learned over the last year and what has happened. Despite Texas having a Communicable Disease Statute designed to respond to pandemics, the governor chose to claim that his dictatorial, unconstitutional lockdowns and mask mandates were based on the Texas Disaster Act, which was designed primarily for responding to hurricanes. And not only did he violate the Constitution, he violated the Texas Disaster Act, itself via self-serving misconstruction of the statute.
The governor also declared himself the dictator-in-chief, claiming that he had the authority to authorize county judges and mayors to engage in dictatorial acts when he decreed so and that they could not be dictators when he dictated that they not be. There was no authority for this assertion in law, either. The emergency powers delegated to county judges and mayors by the Texas Disaster Act are even less that that delegated to the governor.
And, once again claiming falsely that the Texas Disaster Act allowed him to do so, the governor in essence declared himself Chief Medical Czar for Texas, getting between patients and their health care providers. He told hospitals that they had to stop “elective surgeries” based on estimates of demand for health care services, thereby denying life-saving care to untold numbers, causing as yet to be known avoidable deaths. Trained health care workers on the ground know better how to triage than government officials do. Command and control in health care kills.
The myopic focus on a single threat to the exclusion of all others caused over three million Texans to lose their jobs, untold numbers of small business owners to lose their life savings and livelihoods and businesses. It caused domestic violence to surge, depression and suicides to skyrocket, the psyches of our children to be scarred, loss of closure at funerals, and the loss of joyful, once-in-a lifetime experiences for high school and college-aged Texans.
THE LINES OF LEGISLATIVE BATTLE
There can be three broad-based legislative responses to the tyranny Texans have endured, in order of preference:
1) The Texas legislature can take steps to make sure that such unconstitutional, draconian measures never take place again. This is the option that the rank and file conservatives throughout Texas have been telling our elected officials in myriads of ways for almost a year, now.
2) The Texas legislature can do nothing, allowing future governors to continue to violate the law and the Texas Constitution.
3) The Texas legislature can ratify and codify the tyrannical actions of the governor, the county judges, and mayors, making such and more a guarantee in the future.
So far, the Senate, led by the President Pro Tempore of the Senate, Brian Birdwell, is leading on reigning in executive overreach. The House leadership has signaled that it wants to ratify and codify the tyranny, enabling more with HB 3. A number of House members have introduced legislation designed to restrict the tyranny, however.
SUMMARY OF INTRODUCED LEGISLATION
Here is a summary of the introduced legislation known to me:
Senate:
SJR 45 - Birdwell - Requires governor to call a special session of the legislature to extend emergencies affecting a significant portion of the geography or population of Texas. Action taken on the emergency by the legislature is not subject to veto by the governor.
SB 1025 – Birdwell – Codifies SJR 45 if it receives the requisite legislative and voter approval.
House:
HB 311 – Vasut – Modifies the Texas Disaster Act to require that only the legislature can extend a disaster beyond 30 days.
HJR 47 – Krause – Constitutional amendment to require legislative approval to extend a declared emergency or disaster beyond 30 days.
HB 899 – Middleton – Amends the Texas Disaster Act to stop licensing agencies from becoming the personal police forces / enforcement arm of the governor when he issues executive orders.
HB 2097 – Schaefer – Modifies the Texas Disaster Act to disallow mask mandates by executive order of the governor and local officals.
HB 2098 – Schaefer – Repeals the section of the Texas Disaster Act that allows for criminal penalties for violation of an emergency management plan. (This is the statute that both the governor and big county county judges broke by implementing penalties without them being part of any plan.)
HB 3: Burrows – Ratifies and codifies what has already happened and insures that what has happened and worse will happen again. Dustin Burrows is currently the Calendars Committee Chair. The bill was given a low number by Speaker Dade Phelan a signal that he approves it. The bill will be receiving a hearing this Thursday, March 11, signaling that the powerful and busy State Affairs Committee, Chris Paddie is following the lead of Speaker Phelan.
The hearing in the House State Affairs on HB 3 that is scheduled for 8:00 AM this coming Thursday, March 11, 2021, in the Capitol Extension Auditorium will be the opening salvos of the battle over whether we will regain rule of law and constitutional government in Texas in the future. Expect it to be packed and a long hearing.
USURPATION AND TYRANNY
In his Second Treatise of Government, the framer’s political philosopher, John Locke, defined usurpation as “exercise of any part of the power by other ways than what the laws of the community have prescribed.” The Separation of Powers provision of the Texas Constitution (Article 2) tells us that legislators create law (and the penalties that go with it) and the executive implements the laws that the legislature has created.
The framers of the Constitution separation of powers doctrine did not want and their text in the separation of powers provision of the Texas Constitution does not allow the legislature to delegate power to the governor or other executives to become a dictator. They also would have been puzzled by legislators who are eager give away power delegated to them by the Constitution.
It is the design of the framers in regards to separation of powers and their desire to stop usurpation that will be the heart of the debate this session.
But, Locke also defined another term – tyranny - and contrasted it with usurpation when he said, ““As usurpation is the exercise of power which another has a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to.”
As we enter this debate, it is important to remember that lockdowns, mask mandates, and command and control over the relationship between doctors and patients are all tyranny. Government does not have the right to make the decisions about the balancing of risk what each of us has the right to do. It does not have the right to deny us the ability to earn a living, to presume us guilty of being threats to others without probable cause, to violate equal protection under the law (or dictate) by presuming who is essential and who is not, or to force us to take vaccinations.
You can search the Texas Constitution high and low, and not find a word about prioritizing public health or safety from communicable disease. As former Texas Supreme Court Justice Don Willett said, “The Texas Constitution – then and today – exists to secure liberty.”
It is time to remind our legislators (and our governor, county judges, and mayors) that their job is to secure our liberty, not to secure our safety from communicable disease. Informed, free people can respond appropriately to pandemics better than a cowed, fearful populace subservient to dictators serving special interests.
And it is time to remind them that the governor is not their boss. We are both their boss and the governor’s boss. It is time to start listening to We, the People of Texas.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group. And given the recent Facebook censorship, there are now Texas Constitutional Enforcement groups on Texan owned and operated Freedom Lake and Blabbook, as well as MeWe, Gab, and Wimkin.