If the Sword & Shield Acts Had Been Law: COVID Church Closures in Texas

Scenario: Governor Abbott’s COVID Proclamations Closing Churches

In 2020–2021, the Governor of Texas issued a series of executive proclamations under the Texas Disaster Act that:

• restricted in-person worship services,

• capped church attendance,

• treated worship as a regulated activity rather than a protected liberty, and

• authorized enforcement actions against churches while allowing secular activities to continue under different standards.

These restrictions were not enacted by the Legislature.They were imposed unilaterally by proclamation, justified as emergency powers.

What Went Wrong Under the Texas Constitution

1. Proclamations Are Not Law

Under the Texas Constitution:

• Legislative power belongs to the Legislature alone (Tex. Const. art. III).

• The Governor’s role is ministerial execution, not lawmaking.

• Emergency authority does not include power to suspend or rewrite the Constitution.

Abbott’s proclamations:

• created new rules of conduct,

• altered statutory operation,

• and displaced constitutional protections,

without legislative enactment.

That is substitution of authority.

2. Churches Were Treated as Subjects, Not as Rights-Holders

Churches were:

• told when they could open,

• told how many people could worship,

• threatened with enforcement for noncompliance,

while other favored activities operated under different or looser standards.

This was not neutral public health guidance. It was belief-based governance imposed by executive fiat.

3. Courts Failed to Intervene Early

Most challenges failed or were delayed because:

• plaintiffs were told they lacked standing,

• courts deferred to “emergency discretion,”

• immunity doctrines shielded executive actors,

• and judges avoided declaring proclamations void.

As a result, unconstitutional restrictions persisted for months.

What Would Have Been Different Under the Sword & Shield Acts

1. The Proclamations Would Be Legally Defined as Subversion

Under the Acts, Abbott’s proclamations would be analyzed as a matter of law, not deference.

A court would be required to ask:

• Did the Governor substitute executive proclamation for legislative law?

• Did the proclamation condition access to worship on executive approval?

• Did it treat a constitutionally protected liberty as a regulated privilege?

If yes, the conduct is constitutional subversion by substitution of authority.

No balancing tests. No emergency carve-outs.

2. The Proclamations Would Be Void Ab Initio

Because:

• the Governor lacks authority to suspend constitutional rights,

• proclamations are not legislation,

• and the oath binds officers to the Constitution,

any proclamation that:

• restricted worship,

• conditioned religious exercise,

• or enforced belief-based compliance,

would be declared ultra vires and void from inception.

Not “temporarily invalid.”Void.

3. Texans Would Have Had Immediate Standing

Under the Sword Act:

• Any U.S. citizen who resides in Texas would have standing to challenge the proclamations.

• No church would need to be fined, shut down, or arrested first.

• No pastor would need to risk jail to create a “case.”

The injury would be:

misuse of public authority in violation of the Texas Constitution.

Standing would exist the moment the proclamation was issued or recorded.

4. Courts Would Be Required to Hear the Case

Courts would be prohibited from dismissing on grounds of:

• emergency discretion,

• political question,

• prudential abstention,

• or “temporary necessity.”

The Acts explicitly declare:

• determining constitutional compliance is a ministerial judicial duty,

• not a discretionary one.

Judges could not punt.

5. Injunctions Would Issue Immediately

The Acts presume irreparable injury where:

• constitutional liberties are restricted,

• belief-based governance is imposed,

• or authority is substituted.

A court could:

• enjoin enforcement statewide,

• declare the proclamation void,

• and prohibit future reliance on emergency proclamations to restrict worship.

6. Immunity Would Not Protect the Governor

Because ultra vires acts:

• are not acts of the State,

• are undertaken without lawful authority,

sovereign or official immunity would not bar prospective relief.

Abbott could not convert unconstitutional power into lawful authority by labeling it an “emergency.”

The Key Takeaway for Texans

What happened during COVID was not merely overreach. It was constitutional subversion through executive proclamation.

The Sword & Shield Acts would have:

• stopped church closures at the outset,

• forced judicial review immediately,

• prevented emergency powers from swallowing constitutional limits,

• and restored the People’s authority over their government.

Why This Matters Going Forward

If it happened once, it can happen again:

• pandemics,

• climate “emergencies,”

• public safety proclamations,

• ideological crises.

The question is not whether emergencies exist.The question is who governs during them.

Under the Texas Constitution, the answer is not the Governor alone.