Balancing Personal Liberty & Emergency Powers

Constitutional rights and government power

The Issue

Under a disaster declaration in Texas, state and local authorities may exercise temporary emergency powers granted under the Texas Disaster Act of 1975, codified as Texas Government Code Chapter 418, in order to respond to the emergency at hand. In the wake of the COVID-19 virus outbreak, this broad authority has been used to impose a variety of rules and restrictions on Texans as they engage in everyday activities. While some new restrictions, such as social distancing guidelines, are grounded in reason and advance a meaningful public health objective, other constraints are less reasonable and more constrictive than necessary. Unfortunately, some of these restrictions may be in violation of constitutional rights and personal liberties.

Although circumstances warrant the use of emergency powers in certain situations, this authority is not unlimited nor are officials allowed to create their own extrajudicial concepts. There is no pandemic exception to the Constitution. In spite of this obvious truth, local government overreach has been a consistent problem with officials taking an array of concerning actions, like: extending local disaster declarations on an indefinite basis; proposing excessive fines and criminal penalties for noncompliance; threatening to commandeer private property; imposing unconstitutional demands on houses of worship; and placing onerous restrictions on certain businesses, like tracking customers.

Local governments’ overzealous use of emergency powers demonstrates that the Texas Disaster Act of 1975 needs review. It is imperative that the next Texas Legislature take action to uphold the rule of law, strengthen civil liberties, and restore a proper balance between constitutionally protected rights and government power during an emergency. With the abundance of issues that have emerged during these extraordinary times, it is in the best interest of the state for the Texas Legislature to review and amend Texas Government Code Chapter 418 during the upcoming legislative session so that the confusion and overreach that occurred during the current pandemic may be avoided in future situations.


  • Better balance constitutionally protected rights and government power during an emergency.

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