A Failure Theater Update: Now With The Suspensive Resolutions

Nothing much has changed since yesterday, when we posted that the entire effort to reopen the state which is wrapped in the special session that opened Monday is an exercise in Failure Theater.

Yesterday, Senate Bill 29, by Senate President Page Cortez, moved out of the Senate Judiciary B committee. As we noted, the bill is an abject disaster nobody ought to support. SB 29 actually makes current law worse, rather than better, by making it harder for a legislative petition to stop a governor’s abuse of the emergency powers statute gives him. SB 29 would require a petition get the majority of both houses of the legislature, not just one. And it builds in a committee of legislative insiders – committee chairmen and designees of the leadership in House and Senate – to act as an “advisory committee” with no actual power to do anything.

Cortez said yesterday that he doesn’t “think it’s our job to tell the governor what to do.” But of course that isn’t what this is about at all – this is about the legislature being able to step in and tell the governor when he’s out of line, abusing his power and actively doing damage to the people of the state. Which he clearly is. Louisiana’s COVID testing right now is showing positive rates at three percent or below, there are less than 600 people hospitalized with COVID and the state’s economy is flat on its back thanks to the damage the governor has unnecessarily done. And the constituents of these legislators are screaming as loudly as they can that they’ve had all they can take of being locked down.

But wait – here comes House Speaker Clay Schexnayder to save the day.

Schexnayder, who still stands against a petition to reopen the state by voiding the governor’s COVID emergency declaration and is responsible so far for the failure of any of them to have done so, has now brought a suspensive resolution that he says will do what the petition will do but better.

The resolution is HCR 9, and it “suspends the provisions of R.S. 29:724(A) and (B)(1), 766(A) and (B), and 768(A), which grant the authority to the governor to declare or renew a state of emergency or public health emergency only as they apply to the COVID-19 pandemic.”

It also says the suspension will last for 30 days beyond this current special session. Which would mean that if and when it passes both houses, the emergency would be over – which is what the petition does.

This wouldn’t be a terrible idea. We actually talked about it last week. Here’s what we said…

…Namely, this: someone could bring a suspensive resolution in this special session of the legislature which terminates, for a year, the governor’s healthcare emergency powers. Suspend the statute that enables them. Pass it in the House and Senate with simple majorities, 53 House members and 20 Senators, and Edwards cannot veto that resolution. It’s the law of the land until next year.

Then you can pass your bill changing the law on public health emergencies, having it say exactly what you want it to say – let the legislature kick in approval of an emergency after 30 days, forbid the governor from imposing economic restrictions on business without due process of law or legislative approval, whatever. Edwards would then have no choice but to sign that bill, because without it his COVID-19 emergency is gone and so would his ability to declare one for the flu, or for Ebola, or for Captain Trips. He can’t sulk and whine and take his ball and go home; he no longer has that choice.

If you won’t do a petition, the suspensive resolution from the legislature is all you have. And you’d better orchestrate it just right, because if you pass the suspensive resolution and then your new public health emergency legislation turns out to be significantly flawed, you have then broken the process.

HCR 9 doesn’t follow the standard period of a year, cutting that down to a month, which is dumb, though realistically once you’re past the election none of these Democrat governors are going to be keeping their states locked down (other than maybe Gavin Newsom in California).

Otherwise, it’s essentially what we said. But of course HCR 9 needs 20 votes in the Senate, which is a questionable prospect since nobody in that body has lifted a finger to support a petition to reopen the state and its president just said he doesn’t want to tell Edwards what to do.

And Cortez’ “reform” bill, which assumedly would go into law before this session is over and would then control the reality once the suspensive resolution expires. That bill, as we said above, makes things worse. In the event John Bel Edwards turns out to be such a control freak that he insists on locking the state back down at his next opportunity when HCR 9 wears off, it would then take both houses, rather than one, signing a petition to give the people relief.

And what would be more likely than that would be the Legislature calling itself into another special session, which would put taxpayers on the hook for hundreds of thousands of dollars more, and almost certainly a new episode of Failure Theater.

Again, though, we’re not against the suspensive resolution. We think Schexnayder, who owns a tire place and is therefore not a particular expert in statutory analysis, is wrong in saying that it’s superior to the petition as a legal instrument to reopen the state, but it’s fine.

The problem, and this is the Failure Theater piece of this situation, is that everybody knows what HCR 9 is for, and it isn’t for reopening the state.

You pass that suspensive resolution so that you can force the governor to sign your emergency-management reform bill that you’re sending to his desk. The suspensive resolution piece is really a decoy. It’s the stick. It’s the bad-cop.

And when your emergency-management reform bill, which so far is Cortez’ SB 29 since Schexnayder still hasn’t filed the version of it that he claims is coming (and at this point it’s valid to suspect he’s simply on board with Cortez’ bill), is awful, and something which gives Edwards even more power than he currently has, the situation now becomes Epic Failure Theater.

Making him sign that bill isn’t like making him eat his vegetables. It’s giving him a giant chocolate bunny rabbit to eat.

There is another bill, HB 4 by Rep. Mark Wright, which would do what needs to be done. Wright’s bill gives a governor 30 days with an emergency, and then he needs a vote of confidence by both the House and the Senate in order to keep that emergency declaration going. That’s a good bill that Edwards won’t want to sign but would have to if he doesn’t want the suspensive resolution to pass. Wright’s bill comes up in the House and Governmental Affairs Committee today; we’ll see how it does.

Let’s hope that Schexnayder gets behind Wright’s bill and the House is able to substitute it for that mess Cortez is moving through the Senate. Anything else is Failure Theater, and should receive the maximum amount of blowback from the public.



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