…and one wonders if he knows what he’s doing.
At issue here was Edwards’ attempt to require protected status for gay and transgendered people in contracts the state of Louisiana enters into. This hasn’t been an overly successful gambit for the governor so far; Louisiana Attorney General Jeff Landry has chosen to stand in the way of a number of state contracts for legal services which contained provisions requiring that the vendors of those services adhere to guarantees for LGBT employees and so on, on the basis that such protections do not exist in state law because the legislature, which is the body entrusted with creating such policies, has expressly chosen not to create them.
And Landry has so far won over Edwards on this issue in court. Twice. The second time, a state district court ruled that not only was Landry correct that the governor has exceeded his authority in trying to make new state policy contra the legislature’s wishes by including those provisions in those contracts and therefore the AG was within his rights to veto the contracts, but went further. The district court said that Landry has the constitutional authority to approve or reject state contracts regarding legal services for any reason; if he doesn’t like the cut of the governor’s hired lawyer’s jib, or if he detects a whiff of corruption, or if he doesn’t like what the contract is for, he has the discretion to say no.
This is a problem for Edwards, and he’s now appealing the district court’s decision. There isn’t much reason to think he’ll win the appeal.
The governor hasn’t been able to enforce his LGBT nondiscrimination policy in state government since the court ruling came down three months ago. Landry was also refusing to sign off on dozens of state legal contracts for several months prior to the Hernandez decision because they contained language prohibiting discrimination against the LGBT community. The stalemate had been causing significant problems in state government.
In his appeals argument, Edwards has said the Louisiana constitution gives the Division of Administration and Office of State Procurement — both under his authority — the ability to set the terms of state contracts. The governor’s legal team also described the executive order as a “policy directive” and at one point likened it to the dress code Landry imposes on his own employees.
Except there is nothing about a dress code for state employees which is currently violative of state law. Imposing LGBT protections that the legislature has voted down is, in fact, violative of state law. Taken to its logical terminus Edwards would be saying that the Division of Administration and Office of State Procurement would have constitutional authority to enter into a contract with a Mexican drug cartel to supply state employees with heroin, because he has the ability to set state contracts. And no, that power only goes so far as the law allows. Louisiana law does not allow the state government to create a protected class for transgendered people, let’s say, and impose protections for it on the private sector. And that includes the issuance of state contracts, just like Louisiana’s laws against the possession and distribution of heroin do.
It’s a bad argument, and he’s already lost on it. Now he wants to take it up the line and raise the stakes on it.
The governor’s legal team also argued Landry undermined his own constitutional argument for opposing the executive order, by telling Hernandez that Landry would accept the governor’s executive order if it excluded transgender people. Lawyers for the attorney general had argued in court that Landry wouldn’t object to banning discrimination based on sexual orientation, if gender identity was left out.
The Legislature has refused to pass anti-discrimination laws based on sexual orientation or gender identity. Landry’s team muddled its argument by trying to distinguish legally between the two terms, according to Edwards’ legal team.
“This scrambled reasoning proves that even the AG doesn’t think [the executive order] encroaches on the legislative branch; he simply doesn’t like the Governor’s policy,” Block wrote.
Block is Matthew Block, the governor’s in-house counsel who wrote the legal brief for the appeal. He’s making what seems like a political argument rather than a legal one; the state of play here is that Landry can approve or reject state legal contracts for any reason he chooses, so if he shows he’s willing to give ground on some part of the LGBT protections that doesn’t weaken his case – it eliminates the ability to argue that his position is rigid and capricious. By contrast, Landry has offered a compromise and Edwards rejected it, to his own legal detriment.
It even seems like a bad political argument. If you’re gay and you want to see these protections inch forward, Edwards and Block are now telling you that you’ll get nothing unless they can bring along men in dresses, and you might think that’s a good idea or you might think it’s more like making the perfect the enemy of the good. You might also wonder who else gets lumped in with you before this is all over – do you rate ahead of pedophiles or practitioners of bestiality in your quest for special protections?
This, in deep-red Louisiana, of all places. How far is Edwards willing to go down this legal rabbit hole, when there is no particular prospect of victory and your political star won’t rise the higher the stakes on this battle get? Does he want this in front of the state supreme court in a year and a half as the gubernatorial election cycle starts to percolate?
The answer, apparently, is yes – or at least Edwards doesn’t care.
Remember, what we’re talking about here is state legal contracts, and how fettered or unfettered Edwards is to make them.
The end-all and be-all here is Edwards’ arrangement with the chairman of his PAC and head of his transition team Taylor Townsend, and his cabal of plaintiff attorneys assembled to push coastal lawsuits on behalf of the state’s various local governments against the oil and gas industry. That effort took a savage beating at the 5th District federal court of appeals on Friday, but there is still a chance, however small, of resuscitating it in state court.
And most importantly, of attempting to keep the case alive long enough to wrestle a settlement out of the oil industry – which looks like a pipe dream at present, but Democrats and trial lawyers are by nature nothing if not hopeful. Any settlement at all would be likely worth millions to the members of Townsend’s cabal, most of whom have raised large sums of money for Edwards.
But as noted above, the current state of play is that Landry can deny Edwards a contract with Townsend and his fellow legal birds of prey. For any reason Landry wishes. That the draft contract Edwards has with Townsend contains the LGBT language only clothes it in leftist piety and allows the governor to attack Landry as a bigot and homophobe, but this is a ruse.
That’s why Edwards is continuing his doomed-to-fail legal strategy. He needs Landry to get scared about being called a hater and back down, so he can then try to pressure the oil companies to back down and settle these coastal lawsuits.
All of which seems like a very poor use of time and energy, without a foreseeable payoff on any particular front. One wonders what he was thinking when he painted himself into this corner.