Texas is in a raging battle with a lethal foe. Casualties are piling up in the state’s hospitals, some of which are setting up tents for the overflow. And the state’s dominant political party has enlisted with the enemy.
COVID-19, which had seemed to be retreating in the face of mass vaccinations, has attacked with a new and powerful weapon, the delta variant. The Republican Party’s leaders, Gov. Greg Abbott and Attorney General Ken Paxton, have responded by going to court to disarm Texans of one of the two most potent weapons in our medical arsenal: the power to enforce mask mandates designed to block the assault of the delta variant on our respiratory systems.
Leaders of the state’s largest cities, including San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff, won holding actions in local courts and one regional court, blocking the governor’s executive order forbidding local governments and even school districts from requiring masks. A trial over a permanent injunction has tentatively been set for December.
Last week, Attorney General Paxton asked the all-Republican Texas Supreme Court to slap down the cities and the local courts that supported them. The high court’s reaction sounds very much like, “You want us to jump? How high?” Or, “How fast?”
The court Friday afternoon ordered San Antonio and the other rebellious cities to file their arguments — by Saturday afternoon. Then on Sunday the Supreme Court issued a temporary order siding with the governor and the attorney general and blocking efforts by local authorities and medical leaders to thwart the virus. The high court is very likely to make the order permanent after a brief but more thorough process.
Lawyers on both sides have made a variety of arguments. I’m not an attorney, but I have read Chapter 418 of the Texas Government code, otherwise known as the Texas Disaster Act of 1975. Two things stand out.
One is that the act gives the governor extraordinary powers. It says 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.”
That’s exactly what Abbott has done. But the chapter in its opening paragraphs also clearly states the purpose of giving him this power. The fundamental one is to “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.”
The law’s long list of disasters covered specifically includes an “epidemic.”
The nation’s top epidemiologists at first discounted the effectiveness of masks. But having learned how COVID-19 and its hyperaggressive delta variant are transmitted, have concluded that masks are very effective in stopping transmission from infected persons — many of whom don’t know yet that they are infected — to others.
Early research involving summer camps and schools that were open during the summer indicates that requiring masks is effective in holding down the number of infections spread when children spend hours in close proximity with each other.
So by seeking to prevent school districts and other local officials from requiring masks, Abbott and Paxton are in clear violation of the Texas Disaster Act of 1975. They are acting to increase the vulnerability of Texans — and most egregiously, of children — to injury, not to decrease our vulnerability as the law requires.
The governor might as well issue an order forbidding the enforcement of 20 mph school zones. Or the law requiring children under 8 years old to be properly buckled into a “child passenger safety seat system,” a restraint arguably more burdensome than wearing a mask.
Or to put it another way, imagine a governor so concerned about the environment that he responded to a hurricane by issuing an executive order banning the use of gasoline-powered boats to rescue stranded flood victims.
So the Texas Supreme Court could find that Abbott is actually violating the Disaster Act, not acting under its authority. But they are highly unlikely to do so, or to rule against Abbott on narrower grounds. Why? Because of the politicization of our courts in a nation divided between urban and rural areas. And because of current demands of Republican primary voters.
If judges win the Democratic primary in big cities, they win the bench. At the statewide Supreme Court level, only the Republican primary counts. The last time Democrats won a Texas Supreme Court race was in 1992.
Any Supreme Court justice who overrules Abbott on this issue can expect to be challenged and very possibly to lose in the next primary. They can look at the situation for Abbott, who has two notable opponents (a former state senator and a former state party chairman) attacking him for mask restrictions he imposed in the past. But the Supreme Court justices don’t have Abbott’s $55 million campaign war chest.
The opposition of Texas leaders to school mask mandates appears to go against public opinion. I haven’t been able to find any state or local polls on mask requirements for schools, but national polls show the public favor requiring masks by a margin of almost 2 to 1. But there is a large gap between Democrats and Republicans. A recent poll by the nonpartisan Kaiser Foundation found 62 percent of parents of school age children want mask mandates at school. Among Democrats the figure is 88 percent and among independents it is 66 percent. But among Republicans — the sort that vote in Texas primaries — it is just 31 percent.
So it would take a courageous justice to rule for the cities (and for the children), and as William A. Galston, a senior fellow in governance at the Brookings Institution, said: “There’s a reason why [John F. Kennedy’s] ‘Profiles in Courage’ is a very short book.”
That is the political situation today, but what if the current COVID-19 surge turns schools that don’t require masks into superspreader sites? What if we see more and more alarming stories like last week’s Texas Tribune piece headlined “Texas children and children’s hospitals are under siege from two viruses: RSV and COVID-19”?
Gov. Asa Hutchinson of Arkansas, not exactly a liberal state, says he regrets signing a bill earlier this year that prevents mask mandates in schools and has called a special legislative session to rescind it. How many children suffering from or even dying of severe COVID-19 would it take for Abbott to change his stance?
That’s a brutal question, but not as brutal as making parents choose between sending their children to unsafe schools or keeping them home.