Texas Constitution:Article I, Section 28: Difference between revisions

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Texas Constitution:Article I, Section 28 (view source)

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Governor Greg Abbott's expansive response to the coronavirus pandemic has focused attention on this section and its proper interpretation. Cf. ''Garofolo v. Ocwen Loan Servicing, LLC'', 497 S.W.3d 474, [https://scholar.google.com/scholar_case?case=230463052788030019#p477 477] (Tex. 2016) (citation omitted) ("We strive to give constitutional provisions the effect their makers and adopters intended. Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language."). Without question, the section prohibits the suspension of a statute by the Governor without legislative consent. Cf. Tex. Att'y Gen. Op. GM-308 (1939) at [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1939/gm0308.pdf#page=3 3] ("[T]he Governor may invoke martial law for the purpose of executing the provisions of the law . . . but [] the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor.").
Governor Greg Abbott's expansive response to the coronavirus pandemic has focused attention on this section and its proper interpretation. Cf. ''Garofolo v. Ocwen Loan Servicing, LLC'', 497 S.W.3d 474, [https://scholar.google.com/scholar_case?case=230463052788030019#p477 477] (Tex. 2016) (citation omitted) ("We strive to give constitutional provisions the effect their makers and adopters intended. Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language."). Without question, the section prohibits the suspension of a statute by the Governor without legislative consent. Cf. Tex. Att'y Gen. Op. GM-308 (1939) at [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1939/gm0308.pdf#page=3 3] ("[T]he Governor may invoke martial law for the purpose of executing the provisions of the law . . . but [] the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor.").


The real interpretive issue is whether the Legislature may ever authorize the Governor to suspend a statute and, if so, in what manner and to what degree. The text of the section literally prohibits any person or entity other than the Legislature from suspending any law. But the available historical evidence regarding the intent of the makers and adopters of the 1874 constitutional amendment provides [https://texashistory.unt.edu/ark:/67531/metapth233475/m1/1/ support] for the position that the Legislature may expressly authorize the Governor to suspend a particular statute if the Governor's discretion is restricted to a "fixed and known" legislative purpose. The argument would be that, in that circumstance, the Governor is not suspending the relevant statute but rather administering it in accordance with the Legislature's stated policy choices. Cf. Article IV, Section [[Texas Constitution:Article IV, Section 10|10]] (the Governor "shall cause the laws to be faithfully executed").
The real interpretive issue is whether the Legislature may ever authorize the Governor to suspend a statute and, if so, in what manner and to what degree. The literal text of the section prohibits any person or entity other than the Legislature from suspending any law. But the available historical evidence regarding the intent of the makers and adopters of the 1874 constitutional amendment provides [https://texashistory.unt.edu/ark:/67531/metapth233475/m1/1/ support] for the position that the Legislature may expressly authorize the Governor to suspend a particular statute if the Governor's discretion is restricted to a "fixed and known" legislative purpose. The argument would be that, in that circumstance, the Governor is not suspending the relevant statute but rather administering it in accordance with the Legislature's stated policy choices. Cf. Article IV, Section [[Texas Constitution:Article IV, Section 10|10]] (the Governor "shall cause the laws to be faithfully executed").


Finally, note that Abbott's orders would be judged in context. Enforcement of structural provisions like this section may be relaxed during emergencies. Actions that would normally be invalid may be upheld in times of war or sudden crisis. Cf. Lindsay Wiley, ''Democratizing the Law of Social Distancing'', 19 Yale J. Health Pol'y L. Ethics 50, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5965/Wiley_v19n3_50_121.pdf?sequence=2&isAllowed=y#page=34 83] (2020) ("[T]he Fifth Circuit 'reduced' the complex 1905 Supreme Court decision in ''Jacobson v. Massachusetts'' to 'a clear and easy test' dictating suspension of ordinary, heightened standards of review for measures that infringe upon civil liberties during a public health emergency."). However, any implied exception would apply only to the extent required by the exigencies of the situation. Therefore, the exception would be inapplicable to orders issued after the Legislature became institutionally capable of addressing the coronavirus pandemic.
Finally, note that Abbott's orders would be judged in context. Enforcement of structural provisions like this section may be relaxed during emergencies. Actions that would normally be invalid may be upheld in times of war or sudden crisis. Cf. Lindsay Wiley, ''Democratizing the Law of Social Distancing'', 19 Yale J. Health Pol'y L. Ethics 50, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5965/Wiley_v19n3_50_121.pdf?sequence=2&isAllowed=y#page=34 83] (2020) ("[T]he Fifth Circuit 'reduced' the complex 1905 Supreme Court decision in ''Jacobson v. Massachusetts'' to 'a clear and easy test' dictating suspension of ordinary, heightened standards of review for measures that infringe upon civil liberties during a public health emergency."). However, any implied exception would apply only to the extent required by the exigencies of the situation. Therefore, the exception would be inapplicable to orders issued after the Legislature became institutionally capable of addressing the coronavirus pandemic.
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