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AUSTIN — Gov. Greg Abbott has not been shy about aggressively expanding the powers of his office.
The lethal coronavirus outbreak offers Abbott, who espouses limited government, perhaps unprecedented opportunities to exercise great clout as Texas’ chief executive.
“There will be many directives issued by this office over the coming days,” he told reporters as he issued his first disaster declaration on March 13.
Ever since, Abbott has made good on that forecast.
Daily and even more often than daily, edicts and proclamations have flown from his office in the center of the now-shuttered Capitol in Austin.
They have ranged from letting retired nurses reactivate their licenses to permitting beer trucks to be used to restock groceries. Abbott’s waived STAAR tests and deadlines for renewing driver licenses, activated the Texas National Guard, let local governments postpone May 2 elections, boosted telemedicine fees and exempted state agencies and localities from parts of the open meetings law.
Texas’ constitution makes the governor one of the weakest in the nation. Still, for many decades, state law has granted the governor broad powers during an emergency such as an epidemic, hurricane, tornado or flood.
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So far, some leaders in both parties have praised Abbott’s response to mounting deaths and illness from the novel coronavirus. In Abbott, few political scientists and state government experts detect reluctance, within certain limits, to accumulate and wield more clout.
“Once you go there, it’s expansive” what a governor can do in a health crisis, Sherri Greenberg, professor of practice at the LBJ School of Public Affairs at the University of Texas at Austin, noted shortly after Abbott on Thursday banned gatherings of more than 10 people and closed schools, restaurants, bars and gyms for two weeks.
“Like I say, he went – and he’s gone full throttle now,” said Greenberg, a former state representative.
Too much? Too little?
For a time last week, some elected officials criticized Abbott for deferring too much to mayors and county judges on whether and when to order bars and restaurants to cease permitting on-premises dining and drinking. He partially defused that criticism with his Thursday edict banning large gatherings. Critics, though, insisted he’s still too cautious, in thrall to the movement conservative and big business wings of the Texas GOP.
Democratic consultant Glenn Smith of Austin said Abbott should “use his power to withdraw the state’s lawsuit against the Affordable Care Act,” a case now before the Supreme Court.
Some 20 million Americans “could lose their health insurance as a pandemic rages,” noted Smith, senior strategist with the liberal advocacy group Progress Texas. “He might be able to expand Medicaid to as many as 1 million Texans. If that takes legislative action, he could call a ‘virtual’ legislative session and get it done in an hour.”
Abbott spokesman John Wittman, asked to respond, repeated federal and state officials’ assurances that COVID-19 diagnosis and care will be free.
“Anyone who contracts it or is having symptoms will be able to be tested and … receive treatment for this, regardless of your insurance status,” he said.
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Asked if the broad powers of emergency management in the Texas Government Code are daunting to the two-term Republican governor, Wittman replied, “Under Chapter 418, it’s clear that the governor has the power to implement executive orders to ensure public safety and public health. And the governor will continue to do all he can to ensure those two things — working in tandem with our local and federal partners.”
Abbott first began working on preparations for COVID-19 in mid-January, he recounted Thursday. In the past few weeks, he has maintained a heavy schedule of meetings and news conferences around the state as he pushed for ever-stronger measures intended to slow the virus’ advance.
The feverish efforts come after five years in which Abbott has consolidated and built upon the clout that’s been rapidly piling up in the office of governor – a key legacy of former GOP Gov. Rick Perry.
A weak office, by design
Once considered a very weak office constitutionally, it has gained pop, especially during Perry’s record-setting, 14-year-long tenure.
“He had been there so long, he had a de facto cabinet,” Greenberg said of Perry.
Earlier governors, she noted, shared power with agency heads partly chosen by their predecessors’ appointees to boards and commissions. Lieutenant governors used to be deemed almost as powerful as, if not more potent than, governors. No more.
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Abbott has moved aggressively to further the trend. Last summer, he invoked a 1975 law on disasters to keep a board running that regulates plumbers. Otherwise, through a fumble by lawmakers, it would’ve been shuttered.
A year earlier, his chief of staff ordered state agencies to run all new regulations through the governor’s office. Then-House State Affairs Committee Chairman Byron Cook, R-Corsicana, denounced the move as an extralegal bid to “consolidate authority” in Abbott’s office without the required approval of lawmakers and Texas voters.
In April 2018, invoking damage from Hurricane Harvey the previous year, Abbott operated outside clear authority in setting a special congressional election in the Coastal Bend region. Scandal had driven GOP U.S. Rep. Blake Farenthold from office, and Abbott said voters shouldn’t have to wait until November of that year to pick a successor.
In 2015, after the first legislative session since he won the governorship in 2014, Abbott issued unprecedented budget vetoes.
They wiped out not just dollar amounts in ledger-like “line items” in the state budget, but entire paragraphs of “informational items.” They are, in effect, legislative commands to heads of state departments.
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Former Speaker Joe Straus, R-San Antonio, Comptroller Glenn Hegar and many senators were prepared to challenge Abbott’s erasures as unlawful overreach. But Lt. Gov. Dan Patrick unexpectedly sided with Abbott. In a non-binding opinion — written by now-Congressman Chip Roy, R-Austin — Attorney General Ken Paxton did, too.
Vetoes of bills and budget line items, the ability to appoint state boards – subject to Senate confirmation — and the power to call special sessions and dictate their agendas are among few powers that Texas governors kept after a post-Civil War backlash.
Back at the ranch …
The Texas Constitution is designed to make the governor weak — drafters of the 1876 document recoiled at a strong military governor imposed by federal officials during Reconstruction.
“It was an underpowered office, an office denied many responsibilities that most governors [in other states] have,” explained Southern Methodist University political scientist Cal Jillson. Until 1974, Texas governors served two-year terms, not the current four-year intervals.
“If you think back 50 years, [former Democratic Gov.] Dolph Briscoe spent large chunks of time at the ranch [in Uvalde] because there was not that much to do,” Jillson recounted. “The modern Texas governorship is a more active, energetic office – and more because people have been trained to expect and accept more activity out of the governor’s office than because the laws and the Constitution have changed.”
What Jillson described as a two-decade-long project by Perry and Abbott to broaden the office’s powers has encountered bumps.
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In 2007, in three well-publicized executive orders, Perry tried to direct 65% of school districts’ spending into the classroom, faster consideration of coal plant permits and vaccinations against the cancer-causing and sexually spread human papillomavirus.
Courts and lawmakers resisted, arguing the Constitution never countenanced such actions by a governor.
Perry’s order to vaccinate sixth-grade girls against HPV, though it offered parents the ability to opt out, created a firestorm. The governor said he was acting to stop cancer – the three-shot series prevents strains of the virus that cause 70% of cervical cancers. However, after more than 90 of 150 House members coauthored a bill to rescind the HPV executive order, the Perry administration retreated. An appointee at the Health and Human Services Commission put rules for the shots on the back burner.
“He got a lot of blowback on that,” UT’s Greenberg recounted. “He backed off.”
Ironically, Abbott, then attorney general, helped social conservatives rout Perry on the HPV vaccine edict with an informal opinion saying it didn’t carry the weight of law.
‘Power grabs’
In his time as governor, Abbott clashed with the Straus-led House over executive power. The biggest critic was Cook, who accused the Abbott administration of overreach on a rule governing end of life decisions made by hospital ethics committees and blasted Abbott Chief of Staff Luis Saenz’s order for the governor’s office to review all regulations.
On Thursday, though, Cook said that he supports Abbott’s move to shut down bars, restaurants and large gatherings to slow the spread of COVID-19.
“I still have strong feelings about power grabs” by Abbott, Cook said. “This is the one time, though, that I think what’s being done is necessary for the public good,” he said of the ban on gatherings. “I would have preferred he had done it last week. … It doesn’t matter whether you live in Dallas or Chatfield, Texas. You are at risk.”
SMU’s Jillson said that in a crisis such as coronavirus, Abbott’s likely to cash in IOUs and give vent to his aggressive side.
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The “legal-judicial approach” Abbott took in his first term wasn’t as effective as Perry’s more glad handing approach to the job, Jillson said. Abbott learned from that, and has adapted, he said.
“In critical situations like this, if things don’t happen, voters and even other officials don’t look to the law and Constitution to see whether you had the right to do something,” Jillson noted. “They say, ‘You didn’t do what needed to be done.’ And he doesn’t want to be in that position.”
The ‘internal test’
By week’s end, Abbott, 62, was facing questions about whether his relentless pace and meetings with people posed a danger to his own physical well being.
Questioned about his Wednesday trip to Tarrant County, after an elderly retirement center resident who died there was discovered to have had the virus, Abbott said it was justified. He noted the incident sparked fears that Arlington could experience a repeat of a rash of deaths at a Washington state nursing home. It’s unlikely, he assured.
But the governor said he nonetheless may curtail his hopscotching around the state.
“Considering the magnitude of what happened in Arlington, I thought it was important that I be there,” he said Thursday, according to an Austin American-Statesman pool report on a closed news conference in the governor’s office. “There will be situations like that where it is better to be present if possible. However, if at all possible, I will be refraining from traveling.”
Asked how he’s bearing up to pressures, Abbott replied that he’s healthy. At a televised town hall on Thursday night, he said he took a COVID-19 test and the result was negative.
Abbott waved at how, in the 1980s, a tree collapsed as he was jogging in Houston and shattered his spine, putting him in a wheelchair for life.
“I will tell you, as the victim of an emergency tragedy myself, I have experienced the internal test of responding to unique, pressing and urgent challenges and this is a situation I feel very comfortable in,” he said.