"This Is A Court Of Law. We Can't Think Of The People."

Some Texas local officials have little choice but to try and reclaim the authority to enact measures like mask mandates in the face of skyrocketing COVID-19 hospitalizations and a shortage of nurses to treat the ill. https://t.co/ltNqR48Xbk

— Texas Tribune (@TexasTribune) August 14, 2021

I was honestly expecting the Court to take this situation into account. Then again, a rushed interlocutory appeal on a writ of mandamus? They weren't going to consider any consequences to their actions.

Breaking: Siding with Gov. Greg Abbott, the Texas Supreme Court temporarily halted mask orders in Dallas and Bexar counties.

The ruling comes after some school districts and counties defied Gov. Greg Abbott’s executive order banning mask mandates. https://t.co/AwN8DEJUSL

— Texas Tribune (@TexasTribune) August 15, 2021

In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.

I am not exaggerating to say that in the Roman Empire, this office with these powers was known as "diktator."  Which leaves us all in interesting positions:

Greg Casar, an Austin City Council member, said in a tweet Sunday that a mask requirement for Austin ISD is still in place despite the Supreme Court's decision.

"This is about keeping our kids in school and out of the hospital," Casar said.

Meanwhile, President Joe Biden hinted last week at the possibility of the federal government intervening in states that have banned mask mandates.

Recently, the U.S. Centers for Disease Control and Prevention released guidance recommending universal masking for students and school staff. With children 12 and younger not yet cleared to receive the vaccine, some teachers and parents in Texas have expressed worry that not instituting mask requirements could contribute to spread of the virus as the school year gets under way.

That led some of the largest school districts in the state — Austin ISD, Dallas ISD and Houston ISD — to require masks, despite Abbott’s order.

The federal government part is interesting, a sort of Little Rock redux situation:

In a letter sent Friday, U.S. Secretary of Education Miguel A. Cardona told Gov. Greg Abbott and Texas Education Commissioner Mike Morath that the federal government stood with local school districts imposing mask mandates meant to stop the spread of COVID-19. The letter was sent as school districts in some of the state’s major cities have defied Abbott’s ban and implemented mask mandates.

“The Department recognizes that several [local education agencies] in your State have already moved to adopt such policies in line with guidance from the CDC for the reopening and operation of school facilities despite the State-level prohibitions,” Cardona wrote. “The Department stands with these dedicated educators who are working to safely reopen schools and maintain safe in-person instruction.”

Except National Guardsmen are not going to be escorting masked students to Texas schools.  No, the more interesting outcome is the school districts and counties which decide public health is more important than the rule of law.  That's what I had hoped the Supreme Court would consider.  They didn't.

So what happens in Travis County?  Does Abbott send the Texas Rangers to arrest the county commissioners and any school teacher telling her students to put their masks back on?  Paxton sounds like he wants to:

Today, SCOTEX has ordered Dallas Co and Dallas ISD to follow Exec. Order GA-38. Local mask mandates are illegal under GA-38.

Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands.

— Texas Attorney General (@TXAG) August 15, 2021

Abbott is more circumspect:

BREAKING: The Texas Supreme Court imposes a temporary halt to lower court decisions that overruled the State ban on mask mandates.

The ban doesn't prohibit using masks. Anyone who wants to wear a mask can do so, including in schools.https://t.co/QeVipZMPWH

— Greg Abbott (@GregAbbott_TX) August 15, 2021

Abbott makes the point the Supreme Court's order could still fall, if the Court hears evidence about the pandemic that makes it realize public health is a more "rational basis" for lifting the ban than any rationale for imposing it. Gonna be a lot of kids in hospital before that happens.

ADDING:

UT Law Professor Steve Vladek notes that former Texas Supreme Court Justice Greg Abbott understands the Supreme Court ruling better than AG Paxton does:

This is incorrect. #SCOTX issued stays of lower-court rulings that had temporarily blocked GA-38. No school district was “ordered … to follow” the Executive Order. All that took place was that judicial restraining orders *against* that Executive Order were frozen pending appeal. https://t.co/SiWf7SxeYt

— Steve Vladeck (@steve_vladeck) August 16, 2021

It is only an interloucutory appeal, after all. Still, far too much time for Covid to run rampant while the courts are getting their boots on.

This is exactly right:

I understand that the AG's "victory" is only temporary, pending further proceedings. But it's still bad from a public policy point of view. And really, if anybody ever might suffer "irreparable injury" it's the school kids -- does that mean nothing in TX courts?

— David Lewis (@DavidLewis61) August 16, 2021

(It does; but that was not the “irreparable injury “ before the Court. Still could have been, though. That was up to the Court.) And yes, it's going to be a mess:

This is the City of San Antonio's statement on the Texas Supreme Court Ruling Regarding COVID-19 Prevention Measures pic.twitter.com/C2899uj1jc

— City of San Antonio 💪+💉= 💯 (@COSAGOV) August 16, 2021

The question remains: how does Abbott enforce his order, and what if a county or ISD says “Fuck you, people are dying!”? Mass arrests of public officials, teachers, school principals? Yeah, I wanna be the DA taking those cases to jury trials.

(Actually, there will be lawsuits seeking mandamus orders directing compliance, and then possibly motions to enforce, contempt hearings, criminal contempt proceedings…and Covid will rage on.)