Texas State Leaders Seek to Override Local COVID Laws, Threatening Public Safety
By blunting the ability of cities and counties to respond to the pandemic, Texas Governor Greg Abbott aims to weaken future local government action.
By Michael Adame // Staff Attorney @ Public Rights Project
Conservative state leaders in Texas are aggressively seeking to erase local governments’ COVID-19 protocols, drawing into sharp focus the dangers of statewide preemption of local public safety and health rules.
Texas Governor Greg Abbott issued a new executive order in early March under the Texas Disaster Act — under which, The Texan reports, Abbott has “exercised near-unchecked authority over the state, its citizens, and their exploits” — lifting most COVID-19 restrictions statewide, and prohibiting local governments from enforcing mask mandates.
In State of Texas v. City of Austin and County of Travis, the Texas governor and attorney general are challenging common-sense COVID-19 safety rules implemented by the public health authority of Austin and Travis County, Texas, rules predicated on current recommendations by the CDC (that people wear face-masks when interacting in public places) designed to keep citizens safe and a pandemic death toll at bay.
We authored a brief alongside the Local Solutions Support Center (LSSC) and the International Municipal Lawyers Association (IMLA) and joined by 10 law professors and 4 public health organizations fighting back against this challenge.
Our amicus brief argues the rules are not preempted by the governor’s executive order; in fact, they’re authorized by Texas public health statutes. If anyone has overstepped, it’s Governor Abbott.
Here’s why this case is critically important:
- It threatens the ability of local public health authorities to organize and act during public health emergencies
- It could encourage additional clampdowns on local governments by conservative state leadership affecting their ability to conduct routine public health activity and protect the constituents they serve.
What is this Case About?
City of Austin is about a handful of local rules and ordinances passed by the City of Austin, Travis County, and their shared local public health authority in response to the ongoing COVID-19 pandemic; the rules at issue in the case were initially passed in December 2020 and modified in spring 2021.
The state argues that under the Texas Disaster Act the governor is able to cancel out local government action, even if the local government action is authorized under entirely different Texas law, including the Local Public Health Reorganization Act.
This isn’t right: for decades Texas state law and Texas courts have recognized that both state governments and local governments have a role in responding to public health emergencies, including pandemics.
Here, conservative Texas state leaders are pushing for a much more extreme outcome: they want the Texas courts to say that the state — and more specifically the governor — can override local public health decisions no matter what the proper balance between the two levels of government might be.
What this Case Is Really About
Conservatives have been attacking common-sense, science-supported COVID-19 response measures since the start of the pandemic; it’s grown less partisan as this past year has worn on, but still, sharp divisions have been drawn down party lines in how seriously to take the virus:
“Democrats and Republicans disagreed over everything from eating out in restaurants to reopening schools, even as the actual impact of the pandemic fell along different fault lines, including race and ethnicity, income, age and family structure,” writes the Pew Research Center in a recent study.
“America’s partisan divide stood out even by international standards: No country was as politically divided over its government’s handling of the outbreak as the U.S. was in a 14-nation survey last summer.”
Historically, conservative state leadership has dragged its heels in acting to address the pandemic, and been far too eager to stop responding before the crisis is resolved.
As a result, many local governments (especially progressive ones), like Austin and Travis County, stepped in to make sure their constituents are still protected during this harrowing, once-in-a-lifetime emergency. Now that the country is just beginning to turn the corner, conservative leadership is stepping in to not only claim victory for the pandemic’s impending defeat, but prevent local governments from finishing the job.
By blunting the ability of cities and counties to respond to today’s public health emergency, they aim to weaken future local government action; this is so much bigger than COVID. Texas state leadership loathes independent local government action, especially progressive local government action that centers hard truths like, “Texans and Americans of color have been disproportionately affected by the pandemic. More than half of the deaths due to COVID-19 have been Black or Hispanic people, and advocates have reported that these communities have fallen behind in the vaccination efforts,” reports the Texas Tribune.
If the state can beat back Austin and Travis County’s fact-driven, pro-health measures here, rest assured it will try to override localities elsewhere as well. In fact, the Texas AG sued El Paso County last fall, when local leadership sought to impose life-saving measures. And without a doubt, these actions won’t be limited to the borders of the Lone Star state.
At PRP, we’re choosing to fight back because the stakes are too high. Allowing local governments to actively protect public health is critical, especially when state leadership won’t.
By calling into question the ability of local governments to respond to crises, this case could put all Texans at risk. So, what happens now? The Texas Third Court of Appeals will review the case in late May.
Join us in urging that the court upholds Austin’s rules to protect its community by resharing our Twitter thread about the case. And, if you want to learn more about how you can be involved in future briefs protecting cities from overzealous state action, contact us at media@publicrightsproject.org.
