Judge grills state attorneys in legality of Abbott’s mask warrant trial

AUSTIN – There was a recurring topic in the courtroom of U.S. District Judge Lee Yeakel on Wednesday as the judge heard arguments over a challenge to Texas Gov. Greg Abbott’s ban on mask warrants. The subject was Swiss cheese.

COVID-19 protections are like cutting chunks of Swiss cheese and stacking them, lawyers on both sides and the judge repeatedly said. Each layer individually can have a hole, but by the time you stack them, no holes should go all the way through. Masks are like an essential piece of cheese, everyone agrees.

The issue in Wednesday’s trial was whether federal law allows the Republican governor to remove mask warrants as protection school districts can add.

“It’s not as if the governor has banned the injection of bleach. It’s not like he’s banned taking horse medication to cure COVID, “said Tom Melsheimer, lead counsel for the plaintiffs challenging the ban. “He took away something that scientists, doctors and epidemiologists say is effective in fighting COVID in schools. “

The plaintiffs in Wednesday’s case are a group of children with disabilities who are considered particularly vulnerable to catching COVID-19 or at risk of having worse effects if they contract it. The case was organized by Disability Rights Texas, which was represented pro bono by lawyers from Winston & Strawn. They are suing Attorney General Ken Paxton and the Texas Education Agency.

The federal Americans with Disabilities Act requires places like schools to consider “reasonable accommodation” for people with disabilities. Lawyers have argued that Abbott’s executive order banning mask warrants violates the ADA by preventing school districts from considering them as housing for children with special needs.

Abbott should not be allowed to withdraw legitimate “reasonable considerations” for school districts, Melsheimer said.

Lawyers for Paxton’s office objected to the arguments on complex legal grounds. They argued that because the children in costumes did not actually catch COVID-19, their increased risk of contracting it without a mask was speculative and therefore gave them no reason to sue. They asked for the dismissal.

They also made an argument familiar to those who have followed the debate over the state’s new law banning most abortions: the law cannot be challenged because complainants cannot identify any entity that enforces it.

When laws are struck down by a judge, judges usually do so by blocking their further application. Thus, when the application is diffuse, it is more difficult to block a law. Critics have accused that the new abortion ban was written with this in mind, because it explicitly says that the law cannot be enforced by the governor or the attorney general, but only by private citizens.

Regarding Abbott’s ban on mask warrants, lawyers for Paxton argued that even though Paxton has filed 15 lawsuits against school districts, written letters threatening to sue nearly 100, stated in those letters that their goal was to “enforce” the law, and tweeted and sent out in press releases touting his efforts to push school districts to repeal their mask mandates, Paxton is not technically enforcing it.

Instead, he’s acting with the same authority any private citizen could, they said, and affected parents across Texas are pursuing their own lawsuits.

“Your statement that the Attorney General can intimidate or threaten, as seriously or casually as he wishes?” Yeakel asked. ” So, how are you ? It’s not law enforcement, it’s just bullying, and that’s okay? “

Paxton’s lawyers said they wouldn’t call it bullying, but yes.

“The attorney general is enforcing” the ban on mask warrants, Yeakel later said. “It’s not moot… I just find it surprising that your position is that plaintiffs must sue someone other than the person carrying out (the decree) causing the alleged harm.”

Not all problems have a solution in court, Paxton lawyers argued.

The judge expressed his frustration with this argument.

“I think what the state is building here is an elaborate house to avoid access to the courts,” said Yeakel, who was appointed by President George W. Bush.

Texas’ new abortion law, challenged by the US Department of Justice, is being reviewed by another federal judge in the same building. Dustin Rynders, the supervising attorney for Disability Rights Texas, said he is also following the abortion case and sees a clear line running through the two controversial cases.

“Increasingly, they are going further and further to avoid judicial review of violations of civil rights and restrictions on individual freedoms,” Rynders said. “And for anyone who cares about the civil rights of any group of individuals, the civil liberties of any group of individuals, this is frightening.”

After the trial ended Wednesday night, Yeakel said that instead of offering a verbal ruling at the stand, he would work as quickly as possible to issue a written opinion. Towards the end of the day, attorneys for the attorney general indicated that they would likely have problems with Yeakel’s decision if it contained certain terms, which he said very well.

“That’s why God gave us the 5th circuit in New Orleans,” Yeakel said to the crowd laughing, referring to the appeals court.

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Bernice Dyer

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