JOHNSON: Edwards v. Landry And The Rule Of Law

Editor’s Note: A guest post by Louisiana state representative Mike Johnson (R-Bossier City)…

Yesterday, a state district court in Baton Rouge rejected the senseless lawsuit that Governor John Bel Edwards filed earlier this month against Attorney General Jeff Landry.  It is important for everyone to understand what this fight is all about, and why the victory for Landry on Monday is so important to our ability to maintain the rule of law.

A short history of the current battle may be helpful. Back on April 12, 2016, Governor Edwards issued his controversial Executive Order No. 16-11 (“EO 16-11”), which among other things, sought to specifically require that every state officer, agency, and private party contractor must never “discriminate” on the basis of “gender identity.”  A month later, President Barack Obama issued a similar federal order to require every public school in America to implement new policies to allow students to use the bathrooms and locker rooms of their choice, regardless of their sex.

Because countless public officials, parents, business owners and other citizens expressed deep concerns about the dangerous effects of these unprecedented executive orders, I drafted and submitted on behalf of dozens of state legislators a formal request for an Attorney General Opinion regarding how Louisiana and its citizens and public entities should appropriately respond.

On May 24, 2016, Attorney General Landry replied with a lengthy opinion letter in which he affirmed our beliefs that the executive orders raise troubling legal and practical questions for our state. (Louisiana later joined other states in a federal lawsuit to challenge the Obama order.) Among the Landry opinion letter’s well-documented legal conclusions was the fact that Edwards’ EO 16-11 cannot create or expand existing state law.  Since “gender identity” has never been defined, or designated under any state (or federal) law as a legally protected class, Landry concluded the provision of EO 16-11 purportedly requiring state contracts to include a “gender identity” provision “has no legally binding effect.”

In his opinion, Landry noted what was once an obvious truth: “Lawmaking is the province of the legislative branch of government,” and our statutes strictly limit the use of a governor’s executive order to the purpose of ensuring “that state laws are faithfully executed.”

There are many reasons why the Louisiana Legislature, like the U.S. Congress, has specifically declined to enact any law to attempt to define “gender identity,” and/or to create any legally recognized status or special category of protections for the same.  In recent years, when particular pieces of legislation have been introduced on at least six different occasions to create such a law, those measures have been overwhelmingly defeated by bi-partisan, landslide majorities. (See, e.g., SB 436 and 332 of the 2016 Regular Session.)

Because of the complexity of this issue and the myriad consequences of enacting such legislation, the people’s elected representatives have repeatedly and specifically decided not to modify state law in this way.  Of course, all of us believe that every person should be treated fairly and equally, regardless of race, color, religion, sex, national origin, or disability, as is currently required by federal and state law, and that every person deserves respect and dignity as a human being, endowed with inalienable rights and inestimable value by their Creator.  At the same time, we believe that keeping the sexes separate for the purposes of bathroom and locker room access, for example, is important for the privacy and safety of the children and adults of our state.

But none of that was of any consequence to the new governor.  Like his political hero, President Obama, Edwards decided he need not wait on the old-fashioned, consensus-building process of the legislative branch.  Believing he knows better, Edwards simply thumbed his nose at the Legislature and decided to force his preferred “social change” like a dictator—by executive fiat.

Unfortunately, several private contractors, including a bevy of law firms wanting to do business with the state, followed the governor’s unilateral decree and included new “gender identity” language and other extraordinary provisions in their contracts.

Because the Attorney General of Louisiana has the responsibility to approve any legal contract with the state, Landry had no choice but to apply the law as it is clearly written and reject some of the proposed legal contracts on a variety of grounds.  When he did, the governor filed suit to force the attorney general’s hand.

On October 6, I authored and sent a letter to Landry on behalf of 18 conservative legislators to support and encourage him in his principled stand for the rule of law, our statutes, and the solemn will of the people as expressed through their duly elected representatives in the Legislature.

Four days later, I received a lengthy letter of personal reprimand from my old law school classmate, Governor Edwards, in which he argued that I “seem to have some misunderstanding about the statutory role of the Attorney General in the contract approval process,” and commenced to set forth his creative interpretations of our constitution.

I didn’t buy it.  And neither did the court.

Yesterday, 19th Judicial District Court Judge Donald Johnson ruled that the governor does not have the right to sue the Attorney General to force him to approve legal contracts that are inconsistent with state law.

In his statement following the ruling, Landry rightfully explained, “I will not cower to executive overreach. Rather, I will continue to defend our Constitution and the will of the people.”  Our attorney general is precisely right, and he should be applauded for his courage and commitment to take this important stand.

At the end of the day, this fight is ultimately about much more than impeding a president and a governor who are trying to force policies that will allow men into girls’ bathrooms.  It’s even more consequential than that. This fight is about preserving what’s left of our constitutional tradition, the essential doctrine of the separation of powers, and the increasingly fragile commitment of our nation’s leaders to the rule of law.

There will be many more of these pivotal legal battles in the days ahead. Let’s pray that the people stand faithfully with those few leaders who are still willing to defend our founding principles. We have to win these fights. And we’d better. The survival of our constitutional republic depends on it.

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