"Can You Help A Brother Out?"

The Texas Legislature has adjourned from its third special session after a final flurry of activity, including approving new political maps. But lawmakers didn’t pass bills about vaccine mandates or the criminal penalty for illegal voting. #txlege https://t.co/UocIPIdl02

— Texas Tribune (@TexasTribune) October 19, 2021

Abbott issued an executive order commanding all businesses in Texas to NOT require proof of vaccinations or covid testing of employees.  He also suspended, by fiat, all state laws contradicting that order.  And then he turned to the Lege to make his order law.

And the Texas Senate, the truly conservative wing of the Texas Lege, the one run by the guy who said early on old people should die for the sake of the young who needed to keep bars and restaurants open (he's elected separately by the people, not by the Senators), said:  uh, no.

Because the real clout in Texas politics is still bidness, and bidness leaned in HARD on this one.  Which is politically embarassing to Abbott, but not fatal.  It may be legally fatal, however.

So far as I know, Abbott hasn't sent his attack dog Texas AG Paxton, out to sue any business for violating his order.  Maybe because Abbott knows he'd lose in a court of law, where even the SCOT is unlikely to uphold an injunction on the basis of this order.  It's worse now, because he went to the Lege asking for back up, and the Lege said:  "No."

In legal parlance, that's legislative intent.  Legislatures act by passing laws, and in doing so they make records of hearings, deliberations, etc., all part of the legal history of the law, and useful to courts trying to parse the "intent" behind the statute.  Legislatures also act by not passing laws.  That, too, is "legislative intent."  In this case, the Texas Lege has indicated its intent NOT to pass a law banning businesses in Texas from requiring proof of vaccination for coronavirus.  

And if the Lege won't do it, what power does the Governor have to do it?  The answer is:  none.

This doesn't reverberate down to all those suits against school districts over mask mandates; but those cases will be moot (one hopes!) soon enough.  The Lege needs to meet in its next regular session and revise the statute giving the Governor all these "emergency powers."  Hopefully that will happen; actions like this indicate they might be inclined to do so.  For now, the next big question is whether the courts will find enough racial animus in the new Texas districts to throw out the new maps, with or without the gutted VRA.  There's also an interesting state suit arguing the Texas Constitution requires redistricting to occur during a regular session, which ended long before the maps were redrawn.  We'll have to wait and see whether SCOT thinks the Texas Constitution means what its plain (in this case) language says.