Last week my office, the Louisiana Attorney General’s office, issued an official Opinion that John Bel Edwards mask mandate was unconstitutional. He then sent me a letter pushing back on this legal guidance. Today I have sent him a final letter in response. The text is below:
July 20, 2020
Hon. John Bel Edwards
Post Office Box 94004
Baton Rouge, LA 70804
Dear Governor Edwards,
I appreciate your deep concern over the official Opinion 20-0068 issued by the Louisiana Attorney General’s Office last week.
Shortly after we – at great cost to our economy and personal freedoms – “flattened the curve,” you surprisingly applauded extraordinarily large groups of people who were gathering in violation of practically every order you had issued to contain the virus – orders which emphasized social distancing.
While you could have applauded people exercising their Constitutional right to the freedom of speech while at the same time chastised attendees for failing to protect people from the spread of the virus, you did only the former and none of the latter.
Now, you seek to further impede the Constitutional freedoms of all Louisianans without any concrete goal or objective based on published metrics.
After seeing your lack of admonition of those violating your guidelines, surely others – especially those in similar age groups – figured that if it was okay to gather in the streets in large numbers without social distancing or other protective measures, surely it was okay to gather in large groups at locations like nightclubs and bars.
In the last few weeks, the spike of virus cases is predominantly in the same age groups we saw take to the streets and then to the nightclubs and bars. Yet, you have taken no responsibility for allowing this to happen or for cheering it on without admonitions. You did not seem greatly concerned about the possibility that
these young people might go visit grandma and grandpa at the time.
The concern, under the law, is that you have seemed to pick and choose who receives the brunt of your executive authority. In place of a thoughtful use of your authority, you have decided to punish everyone not marching in the streets or destroying statues.
Now, you have placed our job creators in the crosshairs. Your mandates seek to put the burden on them to enforce your new rules. State immunity does not protect our job creators from federal civil rights claims or the myriad of other federal liabilities they may face in executing your edicts. It is simply wrong and beyond your authority.
Many citizens of Louisiana have reached out to our office with serious concerns over your decision-making on these issues. Their concerns, and my concerns, with your new mandate are not that it attempts to improve the situation we face with COVID-19; rather, it is that it does so in a manner that is destructive to the economy of our State and the livelihood of our citizens.
Thousands of small businesspeople could lose their entire life’s work because of your indiscriminate actions. Had you made more attempts to seek consultation with others, a more rational approach could have been made. As I have repeatedly stated, you can use a scalpel; but that would require you to take responsibility. I understand you are not interested in that as it is easier for you to turn citizen against citizen and business against customer.
As to any perceived change in position, it has to do with where we are today not where we were months ago.
Things have changed. We now know the severity of this disease and how it is nowhere in the ballpark of predictions made in March, not only because of our previous actions but because the scientific data indicates this to be the case.
Like you, I trusted the data and models generated in March. But since then, they have been proven to be wrong on a scale of grand magnitude. Therefore, our response needs to change by the same degree of magnitude. By the same token, your extraordinary powers need to change by the same degree of magnitude.
I noticed in your recent letter that you did not address the issues related to your actual authority and the legal mechanism to enforce it. You also seemed to struggle with the idea that a business, or my government office as you pointed out, could choose to require the use of a mask but that your statewide government fiat is not
the same. A mandate is government dictated; office policy is the choice of that private business or management of that office.
A mandate, under an emergency, should have metrics by which to advise the public on whether it has succeeded and when the supposedly temporary mandate would end. That information has not been provided either to me or my representatives who have participated in every UCG meeting which we were invited.
Unlike you, I have faith in the people of Louisiana. I think they are fully capable of making decisions and assuming risks associated with daily life. Driving to work every day is probably the most dangerous thing we do day-in-and-day-out, yet we do it routinely. We have chosen to exercise our right to assume that risk and make our livings.
Three months ago, like the two of us, the people of our State did not know or understand what they were facing. You and I stood together with them to take it on and “flatten the curve.” We did it to provide our health care professionals the ability to prepare for treatment and to establish better protocols.
Now, we must learn how to live with this. We have all been educated; this is no longer a complete unknown.
We know who is vulnerable. I think all citizens should take every measure possible to protect their own health, safety, and lives. I also believe we should give them every opportunity to do so. We should not turn neighbor against neighbor. We should not attempt to turn our job creators into state-run police. And we should be thoughtful and responsible to all, equally. You have not done so under these recent actions.
We can agree on one thing: people should take every measure to protect themselves and those with underlying health conditions should take extra precautions. People should wear masks if they deem them appropriate for the purpose of protecting themselves and others. We should encourage and educate people on their proper use. We should also educate our citizens on things they can do to boost their immune systems
and stay healthy.
This virus will not disappear tomorrow, and it will be difficult – if not next to impossible – to eradicate. The American Society for Microbiology has noted that “to date, the World Health Organization (WHO) has declared only 2 diseases officially eradicated: smallpox caused by variola virus (VARV) and rinderpest caused by the rinderpest virus (RPV).”
A vaccine will not 100% rid us of this China-originating plague. We need to be working on practical, achievable, and realistic practices that we can perform long-term. You have not been doing so, and that is regrettable because – without realistic and achievable goals – we will continue to be reactionary.
Finally, I must again address your false attacks on my efforts throughout this crisis. You pretend as if I have not been engaged in the process; yet you know full well that either I or a member of my staff has attended, virtually in many cases, every meeting you mentioned. We have been available as a resource if, and when, needed. And we have evaluated meticulously every one of your executive orders.
The Attorney General’s Office has been extraordinarily generous in giving you every benefit of the doubt. Yet, we cannot conclude that you are now within your authority.
I stand by my opinion. You are acting beyond your authority.