President Donald Trump is under fierce criticism – even from Republicans – for declaring a national emergency because neither Congress nor Mexico will pay for the big, beautiful wall he promised during his 2016 campaign. The worry is that he will provide a precedent for future presidents, and the future may be close. Who knows what “emergencies” could be concocted in the fertile brains of the current horde of Democratic presidential candidates?
Trump appears to have broken new ground as the first president to use his emergency powers to immediately overrule a law passed by both houses of Congress and signed by himself. But the law that appears to empower him to do so is relatively new, having been passed in 1976. So there is much new ground to be plowed.
For a longer and richer view of the range of things that might legally be considered “emergencies” – with items ranging from a potential invasion from Mexico to the death penalty – let us turn to Texas.
Our state constitution has been operative for 140 years. It was framed as a cautious document, designed in the wake of Reconstruction to limit the powers of the state. The Legislature meets only once every other year, and then only for 140 days. What’s more, Article 3 prohibits any actual laws from being passed in the first 60 days – unless the governor declares an emergency. As a result, Texas governors have been declaring emergencies right and left for 140 years. As a service to the nation, here is a brief list of some of the “emergencies” declared by Texas governors through the decades.
Let’s start with Gov. Miriam “Ma” Ferguson. In 1933, she faced two very real Depression-era emergencies. One was that panicked depositors were making runs on banks, demanding to withdraw more money. On March 3, she sent a message announcing that a day earlier she had unilaterally declared all banks and other financial institutions in the state closed for a week and prohibited them from releasing funds to any depositor or creditor. She said she was doing so at the request of the banks, the Federal Reserve and the state banking commissioner. She asked the Legislature to pass a bill that would provide authority to the banking commissioner, with the approval of the governor, to do what she had already done.
Ten days later she submitted a second emergency bill in an attempt to balance the accounts. It called for a moratorium on mortgage foreclosures in state courts.
In 1937, one emergency involved a horse trainer at Alamo Downs racetrack in San Antonio and a “narcotic ring [that] has been operating throughout the country with headquarters here.” The trainer, an addict, had been found with three ounces of “smoking opium” and a small amount of morphine.
This scandal led the District Supervisor for the Federal Bureau of Narcotics to argue that he needed more tools to fight the menace. He said 29 other states had passed a “uniform Narcotic Law” in the previous few years and that “it has substantially rid these states of narcotic and dope peddlers, with the result that they have come into our State.”
Gov. James Allred decided Texas needed to follow suit. And the rest is history.
In 1939, Gov. W. Lee “Pappy” O’Daniel alerted the Legislature to a happy emergency. The National Park Service badly wanted 800,000 acres of land at the Big Bend, but needed Texas to purchase the land and donate it. After a long but almost poetic description of the land, the governor noted that it could be bought for as little as $1 an acre, and argued that gasoline taxes from tourists would quickly more than pay back the expense. A promise kept.
That year O’Daniel also submitted an emergency item that fared less well. Claiming to have “just received an avalanche of letters and telegrams” from thousands of citizens, he asked for a law repealing the death penalty. The rest is not history.
Two years later O’Daniel took on another threat – the attraction of alcohol to thousands of mothers’ sons who had been sent to Texas for military training. The answer: “to completely eliminate all liquor for a distance of at least 10 miles around every Camp in Texas.”
In 1949, Gov. Beauford Jester proclaimed that there was no lynching in Texas. Well, one since 1935, “but the circumstances of that particular case were quite extraordinary.”
Jester said he believed no more lynchings would take place, but there was a good reason to revise already existing laws against insurrections by inserting the word “lynching.” Otherwise the federal government was likely to impose itself on the matter in Texas.
That year Jester also took up the matter of a threatened invasion from Mexico. “Sixteen months ago the citrus black fly, a most destructive pest on citrus plants and trees, was discovered in the Valles area of Mexico, 292 airline miles south of Brownsville,” the governor reported. And they were moving north. He called for financing of border inspections of plants that might carry the pest.
In 1991, Gov. Ann Richards declared the need for a lottery – accurately called a tax on people who failed math – to be an emergency. She also declared the need for an ethics bill to be an emergency.
Gov. Rick Perry felt it an emergency in 2011 to require any woman undergoing an abortion to receive a sonogram “so that she may be fully medically informed.”
Gov. Greg Abbott two years ago saw emergencies in a number of places. One was that the United States hasn’t held a constitutional convention in 230 years. He called for the Texas Legislature to seek another one.
We also had an emergency need for voters to show IDs before casting their ballots. The Legislature agreed, and in-person voting fraud has been ended. For some reason this year he didn’t include measures to deal with non-citizens and dead Democrats. (Dead Republicans have almost never voted.)
And, of course, Abbott two years ago declared an emergency threat because some school districts were accommodating transgender children. The bill didn’t pass, but somehow the emergency has vanished. Abbott did not list it this year.
It might be because of a different kind of emergency. Such red-meat issues – which have not been the norm in Texas emergency legislation history – may have played a role in the Democrats picking up 11 seats in the House and two in the Senate last November. Could the Border Wall Emergency have the same effect?