Unchecked and Unbalanced

COVID-19 has provided Governor Greg Abbott the chance to wield more power than anyone in Texas history. He’s not eager to give it back.


On March 2, Governor Greg Abbott entered a Mexican restaurant in Lubbock wearing a black cloth mask. As he waited to be introduced, Abbott adjusted the ear loops and gave a small tug on the fabric covering his mouth. A moment later, perhaps remembering what he was there to do, he took his mask off. The Virgin of Guadalupe looked at him from a painting that hung over his shoulder.

“Personal vigilance to follow the safe standards is still needed to contain COVID. It’s just that now state mandates are no longer needed,” Abbott said. Vaccines had begun to roll out, and hospitalization rates in the state had fallen by more than half since a peak of 14,000 patients in January. So Abbott announced that he was lifting the statewide mask mandate and all remaining public health restrictions on Texas businesses.

In the wake of his announcement, Abbott’s decision was widely condemned by public health experts across the country, who pointed out that more than 90 percent of Texans still hadn’t been fully vaccinated and that new variants were spreading across the state. The governor’s order allowed local officials to enact their own restrictions if COVID-19 hospitalization rates exceeded 15 percent, but with toothless enforcement, those powers were effectively useless. 

“It’s bullshit,” Bexar County Judge Nelson Wolff said in a TV news interview. “He didn’t give us any authority to really do anything right. He just comes along and says, ‘Well, you can’t have a penalty for failure to wear a face mask. You can’t mandate customers or employees to wear one.’ It’s meaningless.”

With cheers and applause from the governor’s supporters, who were packed in a small, family-owned Mexican restaurant on the northern edge of Lubbock, the era of pandemic mandates in Texas ended. But Abbott’s prolonged reign of expansive executive power had not. On July 29, Abbott issued another order, which stripped local authorities of their remaining power to impose restrictions when hospitalizations surge. His 30th executive order related to the pandemic came hours after the state’s health agency announced a foreboding uptick in COVID-19 hospitalizations and deaths as the Delta variant spread. 

In recent months, Abbott has issued orders that prohibit government entities and private businesses from requiring vaccines and local authorities from mandating masks.

Many local school districts, cities, and counties—and more recently, some major corporations—have ignored the governor’s direction and mandated masks and vaccines anyway. This widespread refusal to comply with the order sparked a critical legal fight and raised important questions about how far the governor can take his disaster authority. Can those powers be used to explicitly undermine the effectiveness of public health practices? Does a governor’s disaster powers inherently trump local officials’ powers? And at what expense to local control?

The Texas Disaster Act of 1975 charges the governor with responding to “dangers to the state and people presented by disasters.” Under the act, a governor’s disaster declaration grants him broad emergency powers to issue executive orders that have the “full force and effect of law” and to suspend regulatory statutes and agency rules that prescribe the “procedures for conduct of state business” if the governor believes that following those laws would in any way “prevent, hinder, or delay necessary action in coping with a disaster.”

Since they were created, those powers have typically been used to carry out evacuations and disaster recovery for hurricanes or other extreme weather events, but they’ve never been used to respond to a highly politicized and prolonged pandemic. Abbott, who possesses a shrewd legal mind and what appears to be a belief that his executive authority should be unlimited and uninhibited, is now testing the limits of those powers. The governor’s office did not respond to a request for comment for this story.

Critics say Abbott has abused and violated the law by repeatedly using his authority to protect people from disaster to prohibit the very practices that safeguard Texans from COVID-19, all while consolidating enormous amounts of power within his office. These power grabs have helped Abbott advance his ultra-conservative political agenda, outflanking his far-right challengers ahead of the first real primary battle of his career in 2022 and shadow-boxing with other prominent Republican governors and potential 2024 presidential candidates vying for a claim to the Trump mantle.

“In politics,” says Bill Miller, a longtime Texas lobbyist, “the old adage is that the only abuse of power is to have it and not use it.”

Just this summer, Abbott vetoed funding for the entire legislative branch and vowed not to restore it until the entirety of his political agenda was passed. He has also used his disaster powers to launch a state-run immigration dragnet in defiance of President Joe Biden’s federal immigration policy. Legal experts, political scientists, and Abbott’s Democratic foes have warned that his increasingly brazen power grabs threaten the state constitution’s separation of powers and co-equal branches of government. Yet the GOP-controlled Legislature and Texas Supreme Court have so far only aided and abetted Abbott’s expansion and consolidation of power.

“Not only is this the most extensive [use of executive authority], it’s also the most unchecked,” says Randall Erben, a governmental law professor at the University of Texas at Austin, who served as Abbott’s legislative director in 2015. “He’s used these powers in a very aggressive way, and not just in the pandemic.”

Abbott’s predecessor, Rick Perry, spent 15 years transforming the governor’s office into a vastly more powerful position—one that drove the political agenda and demanded loyalty from the Legislature. Perry had come up through the Legislature—first in the House, later as lieutenant governor in the Senate—and had an appreciation for how things worked under the dome. Abbott rose to power first as a Texas Supreme Court justice in 1995, helping secure the GOP’s lock on the high court. Soon after Perry rose to the governor’s office, Abbott became state attorney general in 2002. For the next 13 years, Abbott served alongside Perry, while building a name for himself as an Obama antagonist. “I go into the office, I sue the federal government, and I go home,” he liked to say.

He easily ascended to the governorship in 2015, making him the only governor to have first served as both a Supreme Court Justice and attorney general. That gave him a distinctly, even stubbornly, legalistic approach to policy and power.

“He’s been more creative [than Perry]. He’s a lawyer’s lawyer,” says Erben, who also served as general counsel for Perry’s gubernatorial and presidential campaigns. “He went and looked at all the statute books and said: ‘OK, here’s the powers I’ve got here, and here’s the powers I’ve got here.” 

“He realizes that the law is malleable and subject to interpretation, and the governor is in a great spot to offer the first interpretation of the constitution and legal provisions that affect his office and powers,” says Cal Jillson, a political science professor at Southern Methodist University in Dallas. “I got mine, you got yours, and I’m the governor.”

But Abbott isn’t the only governor in the country to expand their emergency powers or to use the pandemic as a partisan ploy. In New York and California, Governors Andrew Cuomo and Gavin Newsom have tried to outdo each other as the Democratic state leader with the strongest and longest COVID-19 restrictions. Abbott and Florida’s Republican governor, Ron DeSantis—both potential 2024 presidential contenders—have raced each other to reopen their states for business, to lift and prohibit public health mandates, and now, to take it to Biden.

Unlike the giants of Texas politics, Abbott has never been an enthralling politician or an ideological firebrand. As Lieutenant Governor Dan Patrick and Donald Trump tugged the party further to the right, Abbott largely watched from the sidelines, protecting a carefully curated low, fairly uncontroversial profile. 

But the pandemic forced Abbott into the open. On March 13, 2020, the governor declared a statewide disaster due to the imminent threat of COVID-19 and began issuing sweeping executive orders. He ordered hospitals to suspend nonessential procedures. He ordered mandatory screening and self-quarantine for travelers coming from hot spots like New York and New Orleans, and he dispatched state troopers to set up checkpoints for motorists coming from Louisiana.

At first, the politically cautious governor dithered over his use of powers, drawing flak for leaving local authorities to figure out whether to close restaurants, schools, and bars. When he did finally announce a statewide closure of nonessential businesses, he went out of his way to avoid calling it a “stay-at-home order” like other states had. This sowed confusion among the public and local officials about what exactly his order did. Abbott soon made the pandemic response the newest front in his war against local control, wielding his disaster powers as a cudgel to preempt and restrict Democratic county judges and mayors’ own COVID-19 procedures. 

In late April 2020, Shelley Luther reopened her beauty salon in north Dallas in defiance of state and county shutdown orders for nonessential businesses. When the county sent a cease-and-desist order, she tore it up at a rally and then ignored a temporary restraining order issued by a local judge. When Luther was sentenced to jail for her defiance, she quickly became an icon for conservatives who were fed up with “King Abbott” and his tyrannical attacks on liberty and free enterprise. Patrick even offered to serve out her seven-day sentence under house arrest. As Luther’s profile grew larger and anti-shutdown rallies spread, Abbott amended his orders to allow salons to open and removed enforcement mechanisms and jail time as a penalty for violating COVID-19 restrictions.

Less than a month after his initial disaster declaration, Abbott issued new orders to reopen businesses. Using his Disaster Act powers, he established the Strike Force to Open Texas to carry out the process. The advisory council was filled with a long list of powerful business moguls and major campaign donors. Abbott also assembled a team of four medical advisers. “Data and doctors,” he pledged, would guide the reopening.

By the end of April, Abbott announced the state would allow all restaurants, retail stores, and movie theaters to partially reopen if they followed state guidelines. The governor presented a rosy assessment that Texas had corralled the pandemic, despite the rising case counts in many communities and an abysmal lack of testing capacity. 

By mid-July, the state averaged more than 100 deaths a day and had an average daily hospitalization count of more than 10,000 COVID-19 patients. One former Strike Force member said that Abbott had caved to political pressures. “In my view, it changed from where at the beginning of this, he was saying, ‘I’m listening to the doctors,’” said the member, who requested anonymity, in an interview with the Austin American-Statesman. “Instead, what happened was he listened to Shelley Luther and the politics.”

Amid the deadly summer surge that followed, Abbott was forced to order bars to shut down again, reduce capacity for restaurants, and enact a statewide mask mandate. In October 2020, just five months after it was assembled, the governor quietly disbanded the Strike Force. Texas was on the brink of its second major coronavirus surge and many restrictions were still in place. By the spring, Abbott was headed to Lubbock to lift the statewide mask mandate. That decision was made without consulting three of the four medical advisers originally appointed to the Strike Force, including Abbott’s Department of State Health Services commissioner, John Hellerstedt. 

In January 2021, the Texas Legislature convened for its first session since the pandemic began. After months on the sidelines, lawmakers finally had a chance to take back some control of the state’s response. But Abbott wasn’t eager to relinquish his disaster powers and defer to legislative demands. Despite pressure from conservatives, the GOP’s legislative leadership also wasn’t eager to force the matter. Instead, the session was largely spent ramming through a slate of radical right-wing bills. 

Republicans succeeded in passing almost all of their agenda. But two of the governor’s top priorities—a sweeping “election integrity” bill and a punitive overhaul of state bail laws—were thwarted by a last-minute walkout by Texas Democrats. 

An angry Abbott threatened to veto funding for the entire legislative branch until lawmakers did as he said. Just days before calling the first special session, Abbott made good on his threat by vetoing Article X of the budget bill—an unprecedented act of political hostage-taking meant to force Democrats to end their quorum break in order to save their staffers’ salaries and benefits.

The governor’s brash attack on the Legislature shocked many in the Capitol, but it shouldn’t have. Since he took office, Abbott had been carefully and meticulously testing the limits of the line-item veto powers that allow him to strike individual parts of the Legislature’s budget bill. In his first session, he won a protracted legal battle that—despite opposition from the Legislative Budget Board—affirmed his power to veto budget riders that direct agencies to spend a certain amount on specific projects. After the 2017 session, Abbott pushed the envelope with vetoes that struck all funding for the Legislative Budget Board and also nixed funding for a small initiative from the judicial branch’s appropriations. At the time, those vetoes drew little notice in the Capitol.    

Some legislative insiders, however, see a trail of breadcrumbs leading to Abbott’s Article X veto. Indeed, Abbott had floated the idea of vetoing the legislative branch as early as 2019, but his top aides advised against it, according to the Quorum Report.

Abbott was right, though, that he could get away with it. By the end of this year’s second special session, the governor had gotten everything he wanted—and then some.

The Texas Supreme Court declined to intervene, dismissing the act as a political dispute among members of the legislature. Since the veto was made in service of the party’s right-wing agenda, Republican leaders went along, believing that the ends justified the means. That complicity could backfire. “If the governor can throw a hissy fit about something he doesn’t like and defund the legislative branch, there’s nothing to say he couldn’t do the same for the judicial branch,” says state Representative Donna Howard, a veteran Democratic member of the House Appropriations Committee. 

“You look at this border,” Abbott said in June, turning to the landscape behind him with a dramatic gesture, “and you look what you see—you see an unfinished border.” 

Behind Abbott was a stretch of grassland near the border in the Rio Grande Valley. To his right loomed a chunk of Trump-built border wall. To his left, nothing. “This is Biden’s fault because President Biden is not continuing what President Trump began,” Abbott said. A few feet to his right, Trump looked on with approval. Abbott had come to the border to hype his plan for Texas to finish the wall and was joined by Republican politicians from across the country. 

When Congress didn’t fully fund Trump’s proposed wall, he declared a national emergency at the border, which allowed him to seize billions of dollars from the Department of Defense budget. Now, Abbott would use a page out of the Trump playbook.

On May 31, the last day of the regular session, Abbott declared a disaster in the state’s border counties, citing the threat posed by the surge of migrants crossing into Texas. This unprecedented disaster order allowed him to start construction of his border wall without going through the Legislature. Using his emergency budget authority, Abbott ordered the Texas Department of Criminal Justice (TDCJ) to cough up $250 million as a “down payment” for his border barriers. Since he had waited until the Legislature was out of session to announce this plan, he needed approval from only the cohort of GOP leaders who control the Legislative Budget Board.

With his disaster declaration, Abbott also ramped up Operation Lone Star, which he launched in the spring, first as a border deployment of Texas Department of Public Safety (DPS) troopers and National Guard soldiers. The governor ordered DPS—and later the National Guard—to arrest migrants crossing into Texas on private property on criminal trespassing charges. Republican governors rushed to get in on the action. Governor DeSantis sent a fleet of 50 state police officers. Not to be outdone, South Dakota Governor Kristi Noem deployed 50 National Guard troops to the Texas border.

By the end of summer, DPS said that nearly 6,000 migrants had been arrested and jailed for trespassing. 

Both Perry and Abbott have deployed DPS troopers and the National Guard before but largely just to assist or observe federal border security efforts. Abbott escalated by directly challenging the federal government’s purview over immigration law and border enforcement procedures. By targeting migrants for trespassing instead of illegal border crossing and building a state border wall, Abbott is, through executive decree, building his own state-run border enforcement and immigrant detention apparatus.  

Republican governors have tried—and failed—to pull off similar schemes before. Former Arizona Governor Jan Brewer signed a law in 2010 that allowed police to stop anyone they suspected to be an undocumented immigrant and demand their papers, but it was largely struck down by the U.S. Supreme Court. With his criminal trespassing scheme, Abbott believes that he has cleverly cracked the legal code for a state-level immigration dragnet. “We’ve got a new game in town in the state of Texas,” he boasted to Fox News host Sean Hannity. “Texas is going to start arresting everybody coming across the border—not just arresting them, but because this is now going to be aggravated trespass, they’re going to be spending half a year in jail, if not a year in jail.”

The scheme quickly overwhelmed the local criminal justice systems and led to rampant violations of due process. Most of the arrests took place in conservative rural Kinney County. There, attorneys and activists said some migrants were told to sign documents that waived their right to counsel without understanding what they were doing. As the Texas Tribune reported, hundreds of these migrants were locked up in the state’s retrofitted jails without charges filed against them. After immigration attorneys filed motions to release migrants, citing these violations of their constitutional rights and state law, a state district judge granted a motion to release nearly 250 people who had been detained for weeks without formal charges. 

Immigration and criminal justice advocates warn that Abbott has turned down a dark road. “Governor Abbott is basically creating a road map for any authoritarian ruler of any state to co-opt the criminal legal system and target it at perceived political enemies,” says Amanda Woog, executive director of the Texas Fair Defense Project. “It’s bone-chilling.”

“Every theoretical check on his power has either been useless or complicit,” Woog adds. “That includes the Legislature, the judiciary, even the state agencies.” 

Once the House had its quorum in the second special session of the summer, Republicans quickly passed legislation to pay for Abbott’s new border security scheme, including at least $750 million to build his wall. With his border disaster declaration, Abbott had pulled off a threefold increase in the state’s border security spending compared with the prior budget cycle, from about $800 million to nearly $3 billion. One-third of that will be directly controlled by the governor’s office. 

Abbott’s disaster powers are not unchecked—at least in theory. The Legislature could vote to rescind the governor’s disaster declaration, but Republican leadership has shown no intention of doing so. The governor can renew his disaster declarations in perpetuity—for however long he believes the pandemic, the border, or any other perceived calamity remains a threat. 

Abbott has already created a blueprint for future Texas governors who may wish to push the bounds of executive power even further. If a Democratic governor is ever elected in Texas, they could, theoretically, declare a disaster over the lack of health care and insurance coverage and try to unilaterally expand Medicaid. Or declare a disaster due to the imminent threat of climate change and crack down on methane flaring in the Permian Basin or halt the export of natural gas.

Right now, it’s more likely to ratchet the other way. Abbott’s primary opponents, like Don Huffines, have repeatedly attacked the governor for not taking his executive powers far enough—especially on the border. Huffines says he would mobilize more of the state National Guard to the border to defend sovereign Texas from an “invasion” by shutting down commercial traffic at the federally controlled ports of entry.   

“The precedent that’s being set is that any time in the future, when a governor believes that we have a problem and policymakers in Washington are not addressing the problem and policymakers at the local level are not, or are frustrating the governor’s preferences, he can declare a disaster and set up a different set of policies and direct spending to accomplish those policy objectives,” says Dale Carpenter, a constitutional law professor at Southern Methodist University.

Abbott has so far been empowered to push as far as he pleases. Whether that continues and whether that dynamic continues to empower the governor are two of the biggest questions in Texas politics. 

“I think there’s always an ebb and flow between the branches of government and their authority,” says Ray Sullivan, a former chief of staff to Governor Perry. “I certainly would expect the pendulum of executive branch authority to swing back to the Legislature if you have a Democratic governor and Republican legislative branch. One reason that Governor Abbott has been able to exercise power the way he has is because most of the Legislature agrees with him.” 

That agreement is greased by Abbott’s control of the most powerful and well-funded statewide political machine of any Texas Republican in history. Since he first ran for governor, in 2014, he’s raised more than $150 million and currently has more than $55 million in the bank. He’s used that largesse to aid allied Republican legislators and punish those who cross him. In 2020, Abbott spent several million dollars to help the GOP hold onto its majority in the Texas House. In the regular session, lawmakers filed a bevy of bills—some bipartisan—proposing to rein in the governor’s disaster powers and increase legislative oversight. Nearly all of them died. The few that did pass prohibited the governor from being able to restrict the sale and use of firearms or from restricting attendance at places of worship, among other measures. 

If the Legislature is uninterested in curbing the governor, then the task falls to the courts. There, too, Abbott’s appointment powers have allowed him to shape the Texas courts to his liking. 

Five of the current nine Supreme Court justices owe their seats on the high court to an appointment by Abbott. After filling the vacancy in November created by former Justice Eva Guzman, who left to run for attorney general, the governor’s sitting appointees now constitute a majority on the bench. 

Ironically, Abbott’s political career is itself a product of the governor’s ability to fill judicial vacancies. Just a few years after getting elected as a district judge in Houston, Abbott was plotting to run in 1996 against a Democratic incumbent on the Texas Supreme Court. Instead, Governor George W. Bush appointed him to fill a vacancy on the court in 1995, all but ensuring he’d get reelected as an incumbent the following year. 

In late 2018, the governor used his first opportunity to fill a vacancy to install his longtime general counsel, Jimmy Blacklock, on the court, timing the announcement in a way that ensured Blacklock wouldn’t face a primary challenger for reelection. Abbott said of the appointment: “I wanted to make sure that the person I appointed was going to make decisions that I know how they are going to decide.”

So far, the Texas Supreme Court has mostly upheld Abbott’s use of emergency powers during the pandemic, though most rulings have been on limited procedural grounds that do not deal with the substantial questions about separations of power and executive overreach. 

If the Supreme Court does decide to issue a substantial ruling on whether Abbott has overstepped his disaster powers, most observers believe that it’ll side with the governor. That’s because judges have typically been deferential when it comes to executive powers and because the Legislature has the power to clarify those powers if it chooses to. But these justices are also captive to the party’s base. 

“They are not immune to the political pressures,” says Randall Erben. “They gotta run just like the rest of these public officials. They’re going to pay attention to the political considerations in addition to the legal ones.”

Abbott’s penchant for exerting his will through decree has made himself increasingly captive to a right-wing feedback loop. From securing the border security to auditing elections to targeting trans kids, each time Abbott issues a new order or directive, his primary opponents on the right can say it’s proof their pressure is working—and then demand more.

In their eyes, Abbott’s initial anti-vaccine mandate didn’t go far enough because it didn’t extend into the private sector. In August, Abbott’s spokesperson said companies were still free to mandate shots for their employees because “Private businesses don’t need government running their business.” 

But it didn’t take long for the political winds to steer Abbott into a sharp U-turn. After President Biden’s September executive order requiring federal contractors to mandate COVID-19 vaccines for their employees, major Texas corporations, including American and Southwest Airlines, announced that they would abide by the order. When in early October, Southwest flights were delayed and cancelled across the country because, the airline said, of weather and air traffic control issues, conservative politicians fueled unsubstantiated claims on social media that the delays were due to a mass “sickout” by the airline’s pilots in protest of their employer’s vaccine mandate. 

That Monday, Abbott signed GA-40—the 31st executive order he’s issued for the pandemic disaster—mandating that “no entity in Texas” could compel vaccination. To do so, he effectively proclaimed any state law that may stand in his way to be null and void. “I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition,” Abbott commanded.

Like a caterpillar’s metamorphosis into a monarch, Greg Abbott emerged from his gubernatorial cocoon as a majestic autocrat.   

Top image: Illustration by Raul Arias