Did the government have the right to shut them down? Doc says ‘no’.
Many of our readers have been following the story of Doctor Steve Hotze, who has turned his sights on a Republican Governor for being too heavy-handed in his government mandates during the WuFlu.
He is on his way to the Texas Supreme court.
He is saying Abbott has behaved more like a king than a Governor because he has been operating by fiat.
Jared Woodfill, an attorney and former chairman of the Harris County GOP, filed the lawsuit on behalf of Hotze, Biedermann, Zedler, and eight other plaintiffs and summarizes his argument as follows.
“Texas Government Code §418 is unconstitutional on its face because it is an improper delegation of legislative authority expressly prohibited by Texas Constitution, Art. II, §1. The subject executive orders issued by Governor Abbott are facially unconstitutional because they are founded on §418 (an unconstitutional statute) and because they purport to exercise the power to suspend laws which authority is reserved exclusively to the legislature. Texas Constitution, Art. I, §28. Even if the executive orders were founded upon legitimate constitutional authority (which they are not), they are unconstitutional as applied because they were instituted without due process, violate equal protection, and are composed of provisions that are arbitrary, capricious, and which are not the least restrictive means for advancing the government’s purported compelling interest (i.e., protecting public health).
“As such, Texas Government Code §418, and all executive orders issued pursuant thereto, should be declared unconstitutional and rendered null and void.”
…“That’s plainly unconstitutional. In a republic, laws are adopted through the legislature—not ‘proclaimed’ by the governor or by local officials. There is no authority to the contrary.
“In addition to issuing proclamations masquerading as law, Abbott has purported to suspend various laws pursuant to Tex. Gov. Code § 418.016, which says the governor may suspend ‘certain laws and rules’ in light of a declared disaster. But Article I, Sec. 28 of the Texas Bill of Rights states plainly that only the Legislature can suspend laws. That section was even amended after the Civil War to remove the authority of the legislature to delegate its suspension powers.
“This issue of suspension of laws was, incidentally, the very first complaint mentioned in the English Bill of Rights of 1689. It seems Western peoples have been engaging in this conflict against executive usurpation of law-making power for centuries. —TexasScorecard
As far as the ‘public good’ angle of deciding it was necessary for all businesses to close, it addresses that, too.
Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.” — Houston Chronicle
Will they prevail in court? That remains to be seen.