And Now, The First Of The Bills Reining In JBE’s Emergency Powers

There are those among our readers who have been quite irate over the idea of a $1.8 million price tag on the legislative special session which begins today, but we don’t share that objection. In the grand scheme of things, $1,8 million is a rounding error. and there are things which must be done right now in that session – including bills the Legislature needs to pass on tax policy, budget cuts, and yes, emergency management reform.

For example, here’s one of the emergency management bills…

When the Louisiana Legislature convenes for its self-called Special Session on Monday, one of the bills to be considered would limit the power of the governor to extend emergency declarations without legislative approval.

HB4, by Rep. Mark Wright (R-Covington/Dist. 77), would revise Chapter 29 of Louisiana’s Revised Statutes. Among the changes: No governor could extend an emergency order for more than 30 days without legislative approval, nor could he or she extend a public health emergency order beyond 30 days without a majority approval of both houses of the Legislature.

“My bill is not directed at Gov. Edwards, except inasmuch as he currently occupies the Mansion,” Wright said. “Our experience with the Covid-19 pandemic is unprecedented and few people could have anticipated a governor issuing such consequential emergency orders over a period of six months. The mechanisms for emergency orders need more balance and include the input of the Louisiana Legislature.

“It’s clear from this experience that our constituents don’t understand that representatives have no ability to alter emergency orders. These decisions have a strong impact on religious liberty, private property and many other important areas of life. As elected representatives in the Legislative Branch, we must have greater influence over these decisions during defined periods of emergency, including the definition of what will be considered an emergency after 30 days. As I’ve said before, the impact on lives, livelihoods, and our economy has been devastating in ways that have not yet been felt; it’s imperative that we open again soon, and that no single person has the unrestricted authority to shut down commerce and travel. Members of the legislature have strong concerns about the health dangers of this pandemic as well, but these decisions need to be balanced between the executive and legislative branches.

“I hope my colleagues in the House and Senate will look favorably and act quickly on this legislation.”

This is the bill everybody has been talking about. It was first proposed in a report the Pelican Institute prepared discussing public policy responses to COVID-19 back at the beginning of September…

In the meantime, legislators can find some guidance in other states’ emergency powers acts. A public health emergency declaration in Louisiana must be renewed every 30 days. Some states allow the governor to declare a state of emergency but require legislative approval on renewals. Wisconsin, for example, requires a joint resolution of the legislature to extend a state of emergency. Louisiana’s legislature should require the governor to seek legislative approval to extend a state of emergency beyond 30 days.

We’ve talked about the practical politics surrounding bills like these, and why while they’re not a bad approach to making real, long-term reform, they’re insufficient to resolve the current economic catastrophe affecting the state thanks to Gov. John Bel Edwards’ shutdown…

Here’s how this will play out: in this special session, there will be bills brought to limit the governor’s emergency powers in a public health crisis. Perhaps one, which has been discussed, would give the governor a 30-day free ride on a public health emergency but then force him to ask the legislature for a resolution to continue it past those 30 days. That’s a perfectly good bill and we’re all for it.

Edwards will veto the bill, though. He’s going to have all kinds of arguments for why. He’ll say that the Legislature doesn’t have the information he has, and that they lack the expertise in the workings of state government to recognize the nuances of this or that. It will be very professorial and every word will be bullshit, but that’s what he’ll say.

And Clay Schexnayder doesn’t have the votes to override Edwards’ veto.

So, failure theater.

“We need two more Republicans in the House,” or…

“We need the governor’s mansion.”

There’s a way to do this which might not be failure theater, but it’s every bit as brash as the Seabaugh petition – actually it’s even more brash, which is why we would be awfully surprised to see it materialize.

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.

That isn’t a criticism of Wright’s bill, or other bills like it. It’s just a recognition that without having some sort of stick ready to beat Edwards with, it’s not likely he’ll cooperate.

So a suspensive resolution that whacks the entire emergency management statute, or at least the part of it that enables Edwards to declare an emergency, for a year would be such a stick. Move that resolution through both houses and have it ready for a final vote either in the House or Senate immediately before Wright’s, or somebody else’s emergency management reform bill or bills, goes to the governor’s desk. That way you put him under the gun and he has to cooperate or else he’s out of the public health emergency business until he does sign a reform bill.

This is a lot riskier, and a lot heavier lift, than just signing a petition to reopen the state as current statute provides. Only 53 House members are needed to do that (or 20 in the Senate, but there has been no move so far to make that happen). It sounds like there might be 53 willing to sign a petition, this one brought by Rep. Tony Bacala (R-Prairieville) which would kill Edwards’ emergency and forbid him from declaring another COVID-19 emergency for 14 days, which would do that.

But House Speaker Clay Schexnayder still opposes such a petition, for reasons we have never understood.

Which means what’s likely is that bills like Wright’s, which we’re very much a fan of, are little more than a nice academic exercise without the willingness to use raw political power to give them the force of law.



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