Gov. Greg Abbott has for weeks teased a new executive order that he’ll issue on April 27, which will likely reopen operations at some businesses. Retail to-go, his order from last week, becomes official tomorrow.
Curbside retail is not included within the various orders that have been passed since the county and the city issued disaster declarations. And that doesn’t matter, based on how the governor is ruling. He is operating under an opinion from the state attorney general that state law supersedes that of local governments during times of disaster. (If anyone wishes to challenge that, they would need to sue.) We’ll get into the nuance shortly.
Since the coronavirus pandemic began in earnest more than five weeks ago, the city, county, and state have been relatively aligned in their policies. The phrase “disaster declaration” basically means that your government can now tell you to do things that it couldn’t before, like stay home. It can tell one segment of the economy that it can operate (grocers) and another that it cannot (smoke shops). It can make people quarantine if they’ve been exposed to the virus. This is all to protect public safety, and each disaster merits different responses. So governments have a lot of leeway.
Last month, at the onset of the coronavirus, the state sat back and let local governments act. And act they did. Urban areas issued their declarations of disaster and went to work. (Dallas was early to the game.) Gone were gatherings, then dining in restaurants and drinking in bars. They defined the businesses deemed “essential” and those that were not.
In the wake of this came economic collapse. At least 1.3 million Texans have filed unemployment claims from layoffs due to the pandemic. Now these Johns Hopkins guidelines are helping to inform what can open, when, and how. The state appears eager to begin reopening sectors of the economy in phases. County Judge Clay Jenkins has been more reticent to do that; he had looked at allowing retail to-go and, listening to public health officials, deemed it too risky. He said he was not confident that the county had the testing capacity necessary to control an outbreak among those retailers.
That contrast in strategies sets the stage for the coming weeks. Local governments may soon find their own orders overridden by the state. So let’s explain how this all works out.
Yesterday, the Dallas City Council voted to tie the length of its own disaster declaration to the state’s. To begin the discussion, Mayor Eric Johnson trotted out his most Condescending Boyfriend Voice to briefly lecture the media and others about how they don’t understand what’s happening. Like this:
“Is the city attorney on the line? OK, Mr. City Attorney, what I’d like for you to do is to help the members—to help the media, who has had a very difficult time reporting on this issue accurately, I think, and help the general public to understand what we are and aren’t voting on today. Will you please answer for all of us, for all those groups’ benefit, whether or not we are voting today on extending any particular emergency order, including stay at home, or are we merely voting on whether or not to extend the local disaster declaration that I made on March 12? Because I think we need to understand what we are and what we are not voting on today so it will not be reported inaccurately to the public.”
Tone and target aside, the mayor has a point. These orders are confusing, mostly because of how they interact with one another. And they’re about to be even more tangled. These come from the bottom-up: cities and counties issue their orders, then the state brings its own aid and control if it needs to. Formally issuing a disaster declaration also opens up the possibility for federal aid down the road.
If you live in Dallas County, you need to listen to the county’s order, especially if it’s more restrictive than the city’s order. The city’s disaster declaration gives the city manager special powers to control the movement of Dallas residents and operations at City Hall. That means he can tell you to stay home. He can suspend regular City Council committees to focus on the response to the pandemic.
Now let’s look at the county. When the county is under a state of emergency, you must listen to Clay Jenkins. That’s why Commissioners J.J. Koch and John Wiley Price are tweaked; the disaster declaration gives Jenkins powers that don’t require commissioner approval in order to enact, like the mandate that you wear a mask. If you live in another county, swap out the name Clay Jenkins with your county judge. Have a look at Colleyville, in Tarrant County. That well-off suburb’s mayor wants to open outdoor dining and allow salon appointments. Are those defined as “essential businesses” in the most restrictive order? No? Then you should not open.
The governor’s rule trumps all. If, as Abbott told a few radio stations yesterday, his forthcoming order opens beauty salons, then they’re open across the state. He said he reserves the power to preempt local orders that goes against that. Same with retail to go and elective medical procedures. Which is why the City Council’s decision yesterday to tie its own disaster declaration to the state’s makes this all easier to understand. If the state were to lift its order, however, the city believes it can reinstate the local disaster declaration.
The governor “couldn’t preempt us from declaring a state of local disaster,” said City Attorney Chris Caso. “The mayor and the county judges have the authority to declare local states of disaster, that would be our position. The governor can’t say any city or county you shall not declare a local state of disaster.”
That being said: there are carveouts that Abbott can allow for larger urban areas. He can still give power to county judges to react to the unique conditions of their communities, even if those actions are in opposition to his own.
Texas is a big state, after all. What works for Palestine won’t work for Dallas. Hopefully Abbott takes that into account.
Editor’s Note: This story was amended at 5:30 p.m. on April 23 to include a quote from the city attorney and specify Abbott’s position on preemption.
