SADOW: Louisiana’s Disaster Laws Don’t Balance Safety With Liberty Very Well

A report and a lawsuit bring up a trenchant question for Louisiana policy-makers: how does government best protect both the health and safety of the public and yet prevent itself from encroaching on their liberties or unjustifiably interfering with their lives and livelihoods?

The Pelican Institute recently reviewed how Louisiana government deals with public health crises. Undoubtedly prompted by Democrat Gov. John Bel Edwards’ policies addressing the Wuhan coronavirus pandemic, the effort evaluates state law governing the issue and makes suggestions for improvement.

Edwards has faced criticism for policy on this that seems to rely more on arbitrariness than science that has led the state to ring up some of the worst indicators related to the pandemic while having some of the most restrictive rules. But, as the report notes, the reigning jurisprudence on government police powers gives officials wide latitude over restrictions placed upon commercial activity and personal behavior as long as those rules don’t interfere with individual liberties, where a much more stringent standard applies.

Thus, the question becomes one of policy options, and here the report questions whether Louisiana’s emergency regime contains too few checks on the governor’s power. Other than advising upon prevention of curtailment of fundamental liberties or completely vetoing a state of emergency and all the provisions that go with it, the Legislature has no input into this kind of policy-making. This concentration of power in the hands of one official increases the chances of its abuse or of inferior policy-making choices occurring at the expense of the citizenry.

Drawing upon other states’ approaches, the report makes two sensible suggestions that likely would have improved Louisiana’s response during this pandemic. Statutes that would require the governor to seek legislative approval to extend a state of emergency beyond 30 days rather than unilaterally is one suggestion. Another is to clarify that the termination of an emergency due to a natural disaster or act of terrorism does not affect the governor’s ability to declare a public health emergency.

It might be a good idea to go further.

The ability to extend a public health emergency could have a line-item veto applied to it which the legislature, by use of a petition like the one Rep. Alan Seabaugh has pushed to end Edwards’ COVID emergency declaration, could exercise. A gubernatorial proclamation addressing this must list the parts of statute and related instruments of law such as civil and criminal codes affected. Statute could specify this and give the legislature the right to veto individual sections while letting others stand after 30 days. A new law could further specify that new legal alterations for the same emergency could be added only once every seven days, and if a set of expiring restrictions is vetoed these could not be reintroduced for another 30 days without legislative approval.

This kind of 30-day free trial avoids the conflict and potential problems Arkansas is having with its policy response to the pandemic. Some legislators there have sued its governor, saying that he didn’t allow proper vetting of his restrictive proclamations by that body. But more stringently interpreting its law on this to give greater legislative input into the process critics argue slows down things that could hamper immediate and effective response.

By giving 30 days under the policy, this awards time to evaluate the policy for effectiveness and its impact on the citizenry while not dragging out implementation. If not effective enough and/or too onerous, legislators can discard a directive with minimal harm done.

Where charters give local government chief executives emergency powers, a similar arrangement could exist. The Legislature could pass a law affording local legislative organs the same kind of power, except that these cannot veto any local restriction that does not go beyond a state restriction in force.

Louisiana’s inferior pandemic response, almost solely a product of Edwards’ decision-making, acts as a case study in what happens when sufficient checks-and-balances don’t exist in the making of emergency policy. Making changes to beef up these needs to happen as soon as possible.



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