Legitimate executive orders communicate from the chief executive to members of the executive branch issues of policy - how to enforce the law, how to comply with the law, and how to comply and enforce the Constitution. A sure way to tell if an executive order is illegitimate is if it defines some act that citizens are required to do or prohibited from doing under threat of punishment.
No one should comply with an executive order directed at citizens and no law enforcement officer who wants to honor his or her oath should have anything to do with attempting to enforce it.
Here is the Texas separation of powers constitutional provision:
ARTICLE 2. THE POWERS OF GOVERNMENT
Sec. 1. SEPARATION OF POWERS OF GOVERNMENT AMONG THREE DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
Just watching what is going on online and listening to news, it appears that more and more of the people of Texas are ready to throw off the chains of the lockdowns imposed on their livelihoods and liberty by their governor and by their county and city governments.
This article makes the case that the orders by Texas state and local officials are not allowed by current Texas law, and they certainly are not allowed by the Texas Bill of Rights.
The lockdowns make us ask fundamental questions about the nature of the government created by the constitutions of Texas and the United States. What is the legitimate function of our government in Texas? What is the government permitted to do and what is it prohibited from doing under our Constitution?
The framers of Texas formed our government to allow us to gain the benefits from interacting with others while being protected from aggression by others under fixed rules of law. Because they realized that the force of government could be abused, making government, itself, the aggressor/tyrant, the Texas Bill of Rights was created to limit the power of government while it was going about lawfully protecting citizens from the threats of other citizens.
Judicial opinions in the Texas and federal judiciary often talk about balancing the “police power” of Texas against the liberties protected in the Texas Bill of Rights. But when I read my Texas Constitution, when I search for the word, “police,” I find references to pensions and benefits for surviving spouses, but no definition or discussion of police power. I find no overarching principles discussing safety or health or welfare or the common good. I only find a full-throated dedication to liberty and a “free government” in the preamble to the Texas Bill of Rights, as well as absolute, no-exception statements about habeas corpus and the Bill of Rights in general.
As Justice Don Willett said in the 2015 case, Patel v Texas Department of Licensing and Regulation, “The Texas Constitution – then and today – exists to secure liberty.” Liberty and justice for all are our highest political values in Texas. In other words, in Texas, we err on the side of liberty over safety and emergency.
So, what is a legitimate police power that is authorized by the Constitution that is to be balanced against the liberties protected by the Texas Bill of Rights? Legitimate, constitutional police power is justified when it is used against force, fraud, or threats by one citizen against another.
If someone murders, or robs, or sexually assaults another, that is clearly actionable under the police power. It is even acceptable to use law and law enforcement to retaliate against those who threaten others. We have lots of constitutional laws implementing that idea: DWI, terroristic threats, harassment, mental health evaluations and commitment if a person is determined to be a threat to others, etc. To deny liberty to individuals under all of those threats requires due process for each individual, requiring proof that they indeed have threatened others.
Note that police power is NOT legitimate against potential threats or low likelihood threats. Our law and our Constitution requires that individuals have to have actually harmed someone or knowingly threatened someone to legitimately have the awesome power of the police brought to bear against them. Pre-crime thinking is not allowed under our system of government. We as individuals don’t get to speculate that someone MIGHT harm someone else, therefore their liberty should be curtailed. To do so would completely swallow up the principle that liberty is our highest value.
It is the threat of harm (not the mere potential or possibility of harm) by an individual to another that justifies the police power in a pandemic situation. In the Texas Health and Safety Code, we have the Communicable Disease Chapter 81 (enacted in 1989) that says if the government “has reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease, the department or health authority may order the individual . . . to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of the disease in this state.” Violation of such orders is a Class B misdemeanor. (Section 81.083)
Note that the statute as applied to individuals is a legitimate use of the police power of Texas because it focuses on someone who either is proven to be or has a high likelihood of being a threat to others. What this statute does not address, and what would NOT be a legitimate use of police power is the situation we face with COVID-19 – the fact that there is a low likelihood that EVERYONE might be a threat to others because the disease makes people contagious for a period of time without them (or anyone) knowing it.
Note that it is NOT the Communicable Disease statute that is being invoked by Texas officials for the lockdown. The reason is that the rationale for the lockdown is not a legitimate one for the use of the police power. We are being locked down and people’s liberty and natural rights to meet the obligation of contracts, to earn a living, to peaceably assemble, to worship, and to travel are being violated because each one of us MIGHT be a threat to others.
Because Texas courts balance legitimate police power against burdens on liberty, any attorney suing on behalf of Texans over this issue will have to persuade the Texas judiciary that the pre-crime thinking that people’s liberty ought to be restricted because they MIGHT be a threat to someone else is not a legitimate use of the police power. Since the rationale for the use of force is completely illegitimate under our system, there is nothing to balance against the guaranteed liberties of Texans. Something (liberty) beats nothing (illegitimate attempt at the use of police power) every time.
The statute being invoked by the governor, the counties, and cities is the Texas Disaster Act, passed in 1975, and codified in the Texas Government Code as Chapter 418, called Emergency Management.
Before we look at what that code says, it is important to know that the Texas Bill of Rights says about whether emergencies justify the violation of our natural rights in Texas. Stated completely and simply, they don’t. See these absolute statements in the Texas Bill of Rights:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE
To guard against transgressions of the high powers herein delegated we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Sec 12. HABEAS CORPUS.
The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.
Section 418.185 in the Emergency Management Chapter of the Government Code allows the governor, a county judge, or a mayor to order an evacuation of a disaster area. Section 418.018 empowers the governor to control ingress and egress to and from a disaster area and Section 418.018 empowers county judges and mayors to do the same. Section 418.173 allows the state and localities to set a $1,000 fine or confinement in jail for up to 180 days for violating emergency management plans.
But I can find no authorization in the cited law for the draconian orders issued by the governor and localities to shut down businesses, disallowing assemblies, or worship in the Texas Disaster Act. Even if they did, if they do not cite individuals for being a known or likely threat to others, those actions are likewise not legitimate police actions in Texas.
To those who are thinking that we desperately NEED to save lives by restricting the liberty of people who might be threats to others, I say several things. First, the medical community has told us that this disease is mostly a threat to those with known issues of compromised immune systems, including the elderly. Given that, the people most at risk need to have that information and can self-isolate if they choose.
Second, many will voluntarily follow recommendations by public health officials. It is just that a one-size-fits-all government mandate is not constitutionally permissible.
Third, we are being told that three clinical trials show an antidote/mitigating regimen to COVID-19. We just got the news, today that the nursing home in Texas City has successfully stopped COVID-19 with that hydroxychloroquine treatment.It appears the threat of COVID-19 is now much less than it was.
Fourth, Representative Steve Toth has reminded us that deaths occur from economic collapse, maybe more than deaths caused by this disease. Focus on one threat to the exclusion of others is not responsible policymaking.
Fifth, when appropriate, let’s use the individual restrictions with due process in the Communicable Disease statute against those who are proven to be threats by being actually ill or who are known to have been exposed to COVID-19.
Liberty allows a free people to more flexibly and rapidly adapt to threats from nature. Command and control is not only morally offensive and unconstitutional, it is not as practical as liberty, either.
It is time that the people of Texas tell our elected officials that it is past time to honor their oaths and act in a constitutional way in the face of the COVID-19 outbreak. It is time to end the lockdown and set Texans free to responsibly manage their environment.
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.
I posted this in my Facebook Texas Constitutional Enforcement group on July 2, 2020. I just reread what I said three months ago, now, and don’t think I got anything wrong.
OK. With the governor’s latest mask edict today (his 29th executive order of the COVID-19 scare), I had to do a gut check. He continues to double down on the idea that he gets to tell us what to do, changing at the drop of a hat. And I am so very tired of it all.
And the establishment, which is VERY good at propaganda, including Abbott, tells us that we are selfish and uncaring if we refuse to wear masks, now. (Even though at the beginning of this scare, they told us masks really don’t work and may actually be harmful.) They tell us that we are threatening old people and vulnerable people by not wearing masks. They say, “What’s the big deal for the small inconvenience of wearing a mask if you might save a life?” And, there are so many constitutional violations, why are you choosing this place to draw a line in the sand? Friends who profess to be for liberty tell me that it is bad optics to take a stand on masks, playing into the progressives’ hand, further alienating liberty advocates from the majority of the public.
And after doing that gut check . . . . sorry I don’t buy it. I think resistance to the dictatorial regime we are living under is vital in protecting liberty in the future.
You see, we KNOW that for progressives and other totalitarians who want to rule our lives, the issues are NEVER the issues. THE issue is always more power for them over our lives.
There are two burning essences for progressives. First, they really, really want you to know that they are caring, good people, and they are NOT whatever is defined today (not yesterday) as a bad person. It is even better for their psyche if they can have us know that they are good while getting to show that we are really bad. Second, they really, really want to force other people to bend to their will – through psychological, sociopathic manipulation if possible, but brute force is just fine, too.
I am very aware that reason and logic and science will not persuade those that want to rule us, or persuade the gullible who have been following the progressive pied-pipers on every assault on liberty and common sense that they decide to launch. That is one reason why I am not persuaded that staying silent on masks will make those followers any more amenable to liberty in the future.
But I make my decisions on reason and logic and science and principles derived therefrom. And all of that tells me that this is the issue. This is the time. This is the place to take a stand.
THE LEGAL CASE
Since this is a group dedicated to rule of law and preserving, protecting, and defending the Constitutions of Texas and the U.S., let’s start with the constitutional arguments why this mask mandate by the governor is wrong:
1) Separation of powers – Article 2, Section 1 of the Texas Constitution says that only the legislature can establish acts for which punishment is due. When the governor does it, he is violating the Constitution and a fundamental structural protection against dictatorship. We are seeing the impact of perpetual, mercurial, arbitrary, irrational, unequally applied edicts as they whipsaw businesses in Texas, devastating life-savings and dreams, livelihoods, employment, and the Texas miracle that was based on the predictability of rule of law.
2) Due course of law – both the lockdowns and mask mandates contain within them an assumption that apparently healthy people are guilty of being threats to others. People are being punished – not for threatening the immune-compromised lives which is the justification for the stated “crime” – but for engaging in normal life. This presumption of guilt without even the chance to prove innocence from hurting anybody is a fundamental violation of due course of law.
The executive orders with penalties for the general public are also not authorized by the Texas Disaster Act as the governor claims.
THE SCIENTIFIC CASE
The governor claimed in his video announcing the mandate that he has scientific studies to back up his claim that masks help slow the spread of disease. I have not seen such. I have seen a video of a scientist who claims to have reviewed all of the studies on this subject, and that NONE of the properly designed, controlled studies showed any statistical evidence of helping.
Certainly, I have seen no study that says that if an immune-compromised individual (or a person who lives with them) wears an effective mask, such as an N-95 mask, that there is any benefit whatsoever to forcing or shaming apparently healthy people into wearing masks, too. Why do we have to shame or force people into “protecting the vulnerable” when the vulnerable and those close to the vulnerable can protect themselves?
The governor claims he had to get drastic again because of the surge in reported cases of COVID-19 in Texas, and that spare hospital capacity is getting low. But I heard a report on the Michael Barry show this evening from a well-placed executive of a Texas hospital system who claims that he sees nothing alarming in the numbers we are seeing.
First, the surge in positive cases is coming from increasing testing and coming primarily from people in their thirties. When they get tests, usually driven by their employers telling them to get them, and they show up positive, their cases are very mild and they are recovering quickly. This is what Is called the development of herd immunity. (And by the way, as a member of this group points out, if you discredit the idea that immunity will last, you discredit the need or efficacy of vaccines.)
I literally laughed out loud when I heard the governor’s speech this afternoon trying to scare young people about the spread. He said something like, with this rapid spread you are going to get it, even if you are asymptomatic. Having something that has no symptoms is something to be feared? To quote Outlaw Josey Wales’s movie commander, “Don’t piss down my back and tell me it is raining!”
As to hospitalizations, everyone knows that the federal government is paying hospitals more if they classify cases as COVID-19. (This is also causing reported COVID deaths to be higher than actual.) We know that the governor’s dictates in the early stages of the scare that non-COVID “elective surgery” be put on hold, that there is a backlog of people needing treatment from health service providers. Who knows how many people died from providing COVID-19 privilege to some and making second class citizens of those with other diseases. Certainly the effects of the governor getting in between the patients and their doctors earlier this year is still being felt in our health care system. And the nature of the demand for COVID-19 treatment is very different with the current, younger, healthier population with the disease than it was for the older patients who initially were hospitalized.
The experts closest to the situation do not see the numbers the way the governor does. The death rates are more and more looking MUCH lower than initially projected. The fear-mongering of the government and the establishment just won’t hunt, anymore.
And, one other thing, the more we slow the development of herd immunity, the longer those who would rule us think they get to run our lives.
No more. Enough Is enough!
See, this group knows that the lockdowns and the mask mandates are just lining us up for ever more intrusive (and lucrative for the cronies) dictates to come. Mandatory, risky vaccines. Mandatory electronic proof of vaccination to do anything. And who knows how much more of the rollout of the technological tools for the implementation of the police state are coming.
Our framers knew that a stitch in time saves nine. They knew that the time to stop dictators is early in the game, not later. It always is easier sooner, and harder and more costly later.
Flip any virtue signaling directed at us on its face. It is selfish to try to use the force of government to change other people’s behavior, especially when all the protective measures being urged on us can be used by those who are at risk to effectively protect themselves. And it is selfish to try to demonize others to make yourself feel good.
There is no logic in telling others that they must have their liberty restricted so that someone else’s liberty can be expanded.
Recognize that social science says that only about one-sixth of the population thinks and acts on their own judgment. Everyone else is some kind of follower. Let us in this group be the leaders that others follow, not ones who cower in fear that someone will think poorly of us.
To those who mock us, saying we are making a big deal over something minor, ask why they are making such a big deal of it, then. Don’t start nothin’, won’t be nothin’.
So, I will continue to do everything I can to resist these dictatorial edicts by Texas elected officials. I am working on building on a network of attorneys who understand the constitutional and legal issues and are willing to file more lawsuits or to defend those who get cited while resisting.
If you resist, ask for a jury trial, and make the case that these citations are not law, and are therefore null and void and should be treated as such. Then find an attorney to help you appeal if you lose.
Continue or start letting your city, county officials know how you think. Let your state legislators know. We will be in January in a new legislative session soon enough where lots of this can be fixed if the legislators are motivated enough by public pressure.
If there is widespread resistance, those who would rule us cannot prevail. (And by the way, this is not civil disobedience. The governor is not our daddy or master, and we are not bound to obey his edicts. This is real resistance. Resistance to tyranny.
Finally, I hope the meme I created is understandable. It takes the classic Come and Take it Flag, replacing the cannon with a man and a woman with bare faces. It is meant as a quintessentially Texas defiance to others who have the mistaken notion that they have the authority to tell us what to do.
The opponents of the Constitution warned that the federal government would usurp power from the states and engage in tyranny. The most farseeing of its opponents predicted that the power grab would be done via "construction," i.e., faulty interpretations of the Constitution. The Federalists promised that the feds would not abuse their power, and if they did, the states would reign the feds in.
Thomas Jefferson tells us we should interpret the Constitution based on the promises of the Federalists.
And of course, if we are to restore our liberty, it is the people of the states via their state and county representatives that should be doing the interpreting.
The Texas Sovereignty Act has been filed by Representative Cecil Bell in this 86th Texas Legislative Session (2019). The bill number is HB 1347.
The bill has been assigned to the State Affairs Committee in the Texas House.
I know lots of you have been eagerly waiting to take action that will help pass the Texas Sovereignty Act this session. We now have several actions you can take to help move the legislation along.
ACTION 1: Email (or call) your State Rep and ask them to co-author the Texas Sovereignty Act, HB 1347, authored by Rep. Cecil Bell. If you don’t know your State Rep’s name, use this link to find out: https://www.house.texas.gov/members/find-your-representative/ . If you keep clicking long enough you will get to the rep’s page where you can find out their phone number.
Sadly, most pages for Reps do not have their email address on the page. But you can likely guess it by simple using the following syntax: [email protected] . If that does not work, call the office number to get the right email address. While you are on the phone, make the request verbally.
Do not assume that your rep will not take action. My philosophy of lobbying is: if you don’t ask, you are unlikely to get what you want.
Download Summary of Texas Sovereignty Act – 2019 – HB 1347. Attach this PDF to your email when making your request. For Republicans, you may also want to attach this one pager with Texas GOP Platform planks supporting constitutional enforcement.
For your information, so you can thank them for their past support and urge them to support again, here are the State Reps who either joint authored or co-authored the Texas Sovereignty Act last session (named HB 2338 in that 85th session) that are still in the legislature:
Joint Authors: Cecil Bell (author), Dan Flynn, Rick Miller (has already joint authored again), James White, Matt Schaefer (Note that the tradition is that the author works on who joins on as joint authors. If you are in Rep. Cecil Bell, or Rep. Rick Miller’s district, thank them for leading on this vital issue. )
Co-Authors: Kyle Biedermann, Mike Lang (who is the new Freedom Caucus Chair and who has told me he will either joint or co-author), Jeff Leach (who is planning to support, as well), Will Metcalf, Jonathan Stickland, Valoree Swanson, and Bill Zedler
ACTION 2: If you live in the following State Senators’ districts, please call them and ask them to lead on the Texas Sovereignty Act by filing the companion to HB 1347 in the senate:
SD 7 – Paul Bettencourt
SD 18 – Lois Kolkhorst
SD 30 – Pat Fallon
The syntax for deriving Texas Senate phone numbers is 512-463-01nn, where nn is the district number. Example: Paul Bettencourt in SD 7 is 512-463-0107.
Most Republican Senators have told me that they will not lead by filing the bill. That does not mean that they do not support the bill, but rather they are prioritizing other issues.
But we need a champion in the Senate.
I am telling Republicans this when I ask for their leadership: There is a significant possibility that two years from now in the next Texas legislative session, we will be facing a socialist president and congress that is bent on taking everything Texans hold dear – our guns, our trucks, our airline travel, our cattle, our oil & gas industry, our wealth, and our liberty. The Texas Sovereignty Act is a set of processes by which Texas can more rapidly respond to such a situation. The time to build a firewall is before you are in the raging inferno. We need action THIS SESSION.
If staffs want more information on this, have them contact Tom Glass at 832-472-4726 or via email at [email protected] .
ACTION 3: You can help us communicate better with you on items like this if we have more information than we have on you through Facebook. It will help to know your voting address, your email, and your phone. Please help in that respect by going to https://www.txce.org/join and providing that information. We have it for a lot of you, but it will not hurt to duplicate if you are not sure that we do.
ACTION 4: Educate yourself on the arguments for and against constitutional enforcement. Our website is a good standalone site to introduce you to the concept. The FAQS page is especially helpful in that regard: https://www.txce.org/faqs .
Texas Constitutional Enforcement was created to be an action organization. Sure, we do lots of education/persuasion about the power of constitutional enforcement to win back our liberty. We have to do that by necessity.
But we are not political scientists here in this group. We do not study politics for the joy of the study. We are political engineers. We study the science because we want to accomplish something - specifically win back our liberty from the progressives and cronies that have stolen it.
Winning liberty is not a spectator sport. Where I grew up, Odessa, there was a civic motto: "If it is to be, it is up to me."
Being educated about the issues is not enough. Voting is not enough. Actively persuading our Texas elected officials to take on our cause is what is needed. THAT is the main purpose of this group.
As the Tenth Amendment Center points out, it is "nullification" season, especially in Texas, where we only get one regular legislative session every two years. Legislators are filing bills for the 86th Texas legislative session that starts on Tuesday, January 8, 2019 and goes until Monday, May 27. We like to call it, "Constitutional Enforcement Season."
State Rep. Cecil Bell has told me that he plans to file the Texas Sovereignty Act again. And in this session, unlike the last one, we will not have the CoS legislation vying for the attention of the legislators when they think about federal push-back.
I hope each one of you will work several items into your plans:
1) Sign up for email updates and provide us with your address so we can determine what state rep and state senate district you live in.
2) Talk to your state rep and state senator about constitutional enforcement and the Texas Sovereignty Act, urging them to support it. Face to face is best. If you want me (Tom Glass) to come along, I will do what I can to schedule that. This can be done in the district before the session starts, or in Austin after it starts, early in the session. Contact me at [email protected] or at 832-472-4726.
3) If you can't meet with your state rep and state senator, I hope you will send a letter or make a call to them asking for that support when the session starts.
4) Schedule vacation time for the next session to come and testify at hearings at the State Capitol when needed, or to walk the halls of the Capitol pushing for the Texas Sovereignty Act during the session when the time is right.
5) Invite me or other Texas Constitutional Enforcement leaders to come speak to a civic group to which you belong. See contact info above.