"The wicked flee when no one pursues,
But the righteous are bold as a lion."
[Note: Learn about Greg Abbott's executive order 'extending' the Plumber's Board here; see our commentary here.]
We spent part of today at TribFest. The formal programming was what you'd expect. But we had an interesting sideline conversation.
Apparently, there's been an examination of legal remedies to Greg Abbott's executive order 'extending' the Texas Plumbing board. The strongest legal argument is separation of powers (ie. Abbott usurped authority the Texas Constitution grants the legislature). The problem is that members of the legislature are the only ones with standing to sue.
At least to this point, no member of the legislature is willing to put their name down as the plaintiff.
Arif Panju of the Institute for Justice outlined in July:
Unlike the U.S. Constitution, our state constitution contains a separation of powers clause, which is essential to protect individual liberty. As U.S. Supreme Court Justice Neil Gorsuch recognized on June 20 in Gundy v. United States, “there can be no liberty where the legislative and executive powers are united in the same person.” Simply put, the legislature can pass and sunset laws. The governor cannot do either.Unfortunately, without a plaintiff, there's not a lot outside groups can do.
If the Legislature could pass off its legislative power to the executive branch, the separation of powers enshrined in Article II, Section 1 would be rendered meaningless. By ignoring the Texas Constitution’s separation of powers to resurrect the plumbing board and licensing via executive order, the governor ignored both a bedrock principle of constitutional governance and a growing, bipartisan consensus on the harmful burdens imposed by occupational licensing.
Of course, this should surprise precisely nobody.
Bottom Line: Most politicians are cowards, Texas legislators are worse.