In response to the global pandemic caused by COVID-19, local authorities in Texas, like local authorities across the country, issued a variety of orders with the goal of flattening the curve. Many of those orders prevented “non-essential” businesses from operating and limited the ability of individuals to travel freely. In late April, a group of small businesses in Texas, along with two individuals, filed an original mandamus petition in the Texas Supreme Court, arguing that a number of those local orders violated Texas statutory law and the Texas Constitution.

The Texas Supreme Court denied the mandamus petition without an opinion.[1] Justice Blacklock wrote a concurring opinion that was joined by three other Justices to make three points: (1) courts must enforce the Constitution during a pandemic, (2) governments must demonstrate that restrictions on liberties are necessary, and (3) the judicial process must consider all relevant facts.

As to the first point, the concurrence began with the court’s declaration from a prior case that “[t]he Constitution is not suspended when the government declares a state of disaster.”[2] While expressing hope that many of these conflicts could be decided in the public square rather than a courtroom, the concurrence acknowledged that courts must not uncritically defer to the other branches of government or shrink from their duty to interpret and apply the Constitution.[3] Commending the “sovereign people” for enduring the suspension of their civil liberties, the concurrence reminded them that duly elected officials were making difficult decisions in difficult circumstances.[4] But the concurrence went on to encourage the people, the courts, and all branches of government to insist that government action comply with the Constitution, as tolerating unconstitutional orders out of expediency or fear risks “abandon[ing] the Constitution at the moment we need it most.”[5]

The concurrence did not purport to choose a legal standard for judging the constitutionality of government actions taken during a pandemic. But it indicated that the burden would be on the government to justify any restrictions on liberties, positing strict scrutiny or another “rigorous form of review.”[6] The concurrence reasoned that governments should welcome the opportunity to demonstrate that restrictions on liberties are “absolutely necessary to combat a threat of overwhelming severity” and that no less restrictive measures would suffice.[7] 

Finally, the concurrence’s analysis suggested that a thorough discussion of the facts is a necessary part of this “rigorous” review. Indeed, the lack of a factual record was one of the reasons cited by the concurrence for denying mandamus.[8] The concurrence noted the change in circumstances from the pandemic’s early stages, when the people did not know enough facts to second-guess lockdowns and other local orders, to the present, when they have more information about the threat posed by COVID-19 and specific ways to respond to it.[9] The concurrence hypothesized that the additional knowledge may alter the balance between local orders and civil liberties.[10]

Ultimately, the concurrence concluded that, because the Constitution still limits government action during a pandemic, the court must also comply with the limits on its authority.[11] Because the court’s jurisdiction was doubtful and it lacked a factual record, denial of the mandamus petition was appropriate.[12] Instead, the case should have been brought in district court.[13]

 

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[1] In re Salon a la Mode, No. 20-0340, 2020 WL 2125844, at *1 (Tex. May 5, 2020).

[2] Id. (Blacklock, J., concurring) (quoting In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020)).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at *2.

[9] Id. at *1.

[10] Id.

[11] Id. at *2.

[12] Id.

[13] Id.