If there was ever any question about the Caesarian tendencies of John Bel Edwards, those have certainly been put to pasture given the events of the past few days as he’s reacted to the Louisiana Legislature finally executing a petition, as provided for in state law, to end the emergency declaration signed by the governor more than seven months ago.
Edwards’ bluster and petulance following the signing of that petition began during a press conference he called Friday afternoon before the petition was even filed.
Edwards made a claim during that press conference which has not held up very well. He said that the petition does not have the force of law.
§768. Termination of declaration of public health emergency
A. The state of public health emergency shall continue until the governor finds that the threat of danger has passed or the disaster or emergency has been dealt with to the extent that the emergency conditions no longer exist and terminates the state of public health or emergency by executive order or proclamation, but no state of public health emergency may continue for longer than thirty days unless renewed by the governor.
B. The legislature, in consultation with the public health authority, by a petition signed by a majority of the surviving members of either house, may terminate a state of public health emergency at any time. This petition terminating the public health emergency may establish a period during which no other declaration of public health emergency may be issued. Thereupon, the governor shall issue an executive order or proclamation ending the state of public health or emergency.
By law, Edwards’ emergency declaration has been terminated. It was terminated when the House Republicans filed the petition. The statute says that “the legislature…may terminate” the emergency “at any time.” That’s very clear and unambiguous, and it means that by statute it is not required for the governor to agree and issue the executive order in order that the emergency be terminated. The order/proclamation the statute directs Edwards to issue is but a mere formality.
Which was the subject of a radio appearance that Rep. Alan Seabaugh, who has been the chief driver of the petitions to reopen Louisiana since the beginning of this sorry nightmare, made with KEEL-AM out of Shreveport on Monday…
But later Monday, Edwards filed a lawsuit against the Louisiana legislature, which Seabaugh says is not legally possible since it isn’t a juridical person (and there is support for that contention; as an arm of state government it is protected by sovereign immunity unless it specifically announces in statute that it is subject to suit).
That action was ill-considered given Edwards’ position.
On Friday, Edwards said that the petition had no force of law. On Monday he filed a lawsuit seeking an injunction against the petition.
Those words and that action are not squarable. If the petition had no force of law, and Edwards’ emergency was still in effect, he would not need to seek an injunction. It would be the House of Representatives, and House Speaker Clay Schexnayder specifically, who would need to seek an injunction. If the petition had no force of law Edwards wouldn’t need to do anything.
That isn’t the only problem with Edwards’ lawsuit. Nor is the misspelling of “Louisiana” (according to Edwards’ legal counsel Matthew Block the new spelling of the state is LouISISana, which leads to all kinds of gallows humor and petty ironies) on the caption on the front page.
Edwards alleges that the petition is “unconstitutional.” This is a bizarre argument for at least two reasons.
First of all, as a lawyer Edwards should know that all laws are presumed constitutional. That is basic, time-honored legal doctrine. Title 29, Section 768 was duly passed by the Louisiana Legislature and signed by the governor. There are no known legal impediments to that statute’s passage; it was not passed or signed under duress or fraud. As such, he has a duty to abide by that law regardless of what he thinks of it.
And second, John Bel Edwards is not the arbiter of what is constitutional under Louisiana law. That is for a court to decide. He has no authority and no legal right to refuse to abide by a statute as he has with respect to this petition. If Edwards had issued the proclamation the statute requires and then filed his lawsuit he would be within his rights. That he has refused to issue the order puts him in violation of the law.
Edwards also makes the argument, which Schexnayder and his non-lawyer Lionel Rainey made in a secret meeting with private citizens before the Speaker relented and supported the petition, that one house of the Legislature can’t overturn the executive branch.
That is a terrible argument, again for at least two reasons.
First, it is not basic civics or settled law that both houses of a legislative body must agree before something may emanate from the legislative branch. Quite the contrary. We just saw Supreme Court Justice Amy Barrett confirmed and sworn in based on a majority vote of the U.S. Senate, with no action requested or taken by the U.S. House of Representatives. Similar confirmations of gubernatorial appointments are made by state Senates across the country, including in Louisiana. Unicameral action is by no means unheard of.
And second, the House’s petition in this case comes pursuant to a state statute passed by both houses and signed by the governor. This isn’t one house of the legislature making law: the law was already made. This action is a function of that law.
Let’s remember that the declaration of an emergency and the mandates and restrictions which go with it are legislative powers. Only the legislature can make law as a matter of normal course; not the governor. Title 29, Section 766 of the Revised Statutes which grants the governor the power to declare an emergency is an example of the Legislature ceding some of its power to the governor in an effort to deal with exigent circumstances which may arise.
Those mandates and restrictions, whether they might have positive effects in stopping the spread of COVID-19 or not, are governmental actions which do not pass constitutional muster outside of the case of an emergency. In anything other than exigent and temporary circumstances they constitute rather bright-line violations of civil rights.
And so in order for the legislature to surrender its own lawmaking power to the governor as is done in Title 29, Section 766, two things have to be true.
First, there has to be a provision in law which allows for a clawback of the legislative power afforded to a governor. Otherwise, Section 766 would be unconstitutional. It would provide a roadmap to dictatorship in Louisiana: all a governor would have to do would be to declare a public health emergency and then rule as a tyrant forever after. Theoretically he could cancel elections, jail dissidents, close businesses, expropriate land, issue a new “emergency” constitution, and do lots of other things associated with authoritarian or totalitarian rulers, all under the color of a public health emergency. If no clawback provision by which the legislature could put an end to that emergency existed, there would be no check on the governor’s power.
And if majorities in both houses were required to end such powers, then Edwards or a theoretical tyrant of a governor would merely need to co-opt or intimidate a majority of one house, in this case the Senate, in order to secure himself as an absolute ruler. These might be uncomfortable things to think about, but Edwards’ actions so far force the reader to consider them.
Second, there must be a full-blown consensus that such exigent circumstances exist in order to justify those emergency powers. Forget about the abuse of a public health emergency in order to usher in tyranny. That’s a hypothetical. But just consider Edwards’ mask mandate. Absent a bona fide public emergency, the idea that Louisiana citizens would be forced to cover their faces when in public places is an entirely odious and bizarre notion which would evoke mental images of Afghanistan or Saudi Arabia, where Islamic Sharia law is in force. In order to give color of constitutionality to such extreme measures (consider the limitation on church attendance, as another example), you had better have buy-in from everyone concerned.
And when a majority of one house of the legislature signs that petition, you do not have that consensus anymore. Regardless whether you think those House Republicans are morons for signing the petition, they were elected by the people of Louisiana to make decisions regarding legislative power and their signatures indicate they no longer consent to Edwards holding that power which is rightly the province of the Legislature.
And furthermore, Article 3, Section 20 of the Louisiana constitution provides that only the Legislature has the power to suspend laws. The governor does not. For John Bel Edwards to declare that Title 29, Section 768 has no force of law is an attempt by him to suspend a duly enacted Louisiana statute. His action is wholly, completely and obviously unconstitutional.
The lawsuit makes one other legalistic argument alleging the petition’s infirmity: namely, that because Section 768 requires the petition be made “in consultation with the public health authority,” the House is required to act following such a consultation but did not in this case. The lawsuit alleges there has been no “meaningful” consultation with the public health authority.
That is factually untrue, and even if it were not Section 768 does not require “meaningful” consultation; that’s a standard dreamed up by Matthew Block’s imagination.
The Louisiana Department of Health is the public health authority of the state. And LDH has testified countless times in front of the House in committee hearings on countless bills and resolutions covering the subject of COVID-19 this year. LDH has consulted with the homeland security committees of both houses of the legislature in regular meetings covering the subject of COVID-19.
Furthermore, in contemplation of a petition to be signed by a majority of the House, Rep. Tony Bacala sought and received a meeting from the public health authority earlier this month. We’re told that Bacala actually recorded that meeting, which lasted for a full 90 minutes.
If it is the governor’s position that one might hold a 90-minute meeting with officials of the Louisiana Department of Health for the purpose of discussing COVID-19 and that meeting does not constitute “meaningful” consultation, then one wonders what in the hell we are paying LDH’s employees for.
Edwards’ lawsuit is 24 pages and as a matter of constitutional law it’s gibberish. That he believes strongly that Louisiana is still under threat from COVID-19 and his lockdowns are a public health necessity is all very well, and he might be proven correct on the facts (doubtful from this corner), but that’s beside the point. The circumstances surrounding the petition’s signing are irrelevant to the legal question. The House has the power to dissolve his emergency, and on Friday they exercised that power.
That lawsuit would be laughable. It isn’t. It’s frightening. It’s terrifying that Louisiana has a governor who respects the state’s constitution and laws so little as to offer such a thin justification for claiming what are now extralegal powers to interfere with our citizens’ civil rights.
It’s becoming quite clear that John Bel Edwards has to go. A wannabe dictator in the Governor’s mansion is far more dangerous than a coronavirus.