The focal point in the battle over the governor's power to make policy through executive orders is Albert Hawkins. His renomination to the position of executive comissioner of Health and Human Services is now held hostage by the Senate Nominations Committee. Republican senators want Perry to rescind his order mandating that sixth-grade girls receive the HPV vaccine, and the implicit threat is that if he does not, they will not vote to confirm Hawkins. They don't have to vote him down; they can elect to leave the nomination pending. In the event that the session expires without any action on his nomination, the appointment is dead. Either way, Perry suffers a defeat. The obvious solution is for the governor to embrace Dennis Bonnen's bill making the vaccine optional rather than mandatory. Otherwise, he will lose this fight.
The exchange in Nominations between Eltife and Hawkins is representative of the resistance to Perry in the Senate. Here is a shorthand version:
Eltife: I want to focus on the executive order mandating the HPV vaccine. How long will your rulemaking process take.
Hawkins: The Administrative Procedure Act sets out the procedure.
Eltife: How much money will it cost?
Hawkins: The estimate for GR is $13 million per year, plus vaccine for the children's program, another $64 million.
Eltife: Is that money in your budget?
Hawkins: $64 million in federal sources and available in budget.
Eltife: Do we have a statute? Does an executive order create a statute?
Hawkins: The order is based on existing state law.
Eltife: Don't the rules say that executive orders should be based on an emergency?
Hawkins: There are statutory provisions allowing us to adopt rules on immunizations.
Eltife: An executive order is for an emergency. Do you believe we are in a state of emergency, to mandate that every child in sixth grade needs that emergency?
Hawkins: I don't think a simple yes or no answer would do justice. The governor has determined an emergency.
Eltife: I don't care what the governor thinks. I want to know what you think.
Hawkins: I don't have any reason to question the determination that has been made.
Eltife: You are commissioner of health. How can I vote for your renewal if you can’t say whether it is an emergency or is not an emergency?
Eltife: As commissioner of health, would you have asked for executive order?
Eltife: I came here prepared to vote for your confirmation All I want to know, is this an emergency situation.
Hawkins: The rulemaking process would be a key factor in determining whether this was an emergency.
Eltife: Yes or no.
Hawkins: I am sorry, I am unable to answer that question.
[Chairman Jackson asks a few questions.]
Eltife: I'm going to try one more time. It's hard for me to believe that the commissioner of health for this state cannot tell me whether HPV has risen to the state of an emergency or not. Can you tell me or not?
Hawkins: No I can not.
Eltife: If you can't tell me, I can't support your nomination.
Nelson followed by asking Hawkins to rank the top five most critical health issues facing Texans today. Hawkins mentioned the plight of the elderly and disabled, the need to broaden coverage of Medicaid and CHIP, addressing needs of the uninsured, payment rates established for providers ... but Nelson interrupted: She wanted to no the greatest threats to individual health and where cervical cancer ranked. It was clear that the critics' legal position is that the governor can't compel agencies to act in the absence of an emergency, and cervical cancer (377 deaths last year, according to Nelson) does not give rise to an emergency that would justify a mandatory vaccine program.
Hawkins position was that his agency has been granted statutory authority over immunizations through the rulemaking process. The executive order, as he saw it, did not require the agency to provide the vaccine: "I do not understand the governor's executive order to eliminate discretion in the rulemaking process. As that process proceeds, it will take into account public concerns. I cannot predict for you what the outcome of that rulemaking process would be." Well, maybe he can't, but the senators are pretty sure they can. That's why the Legislature will likely act to nullify the executive order.
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