Last week, Republican 19th District Judge William Morvant declared part of this law unconstitutional. It allowed one house of the Legislature to end gubernatorially-declared states of public health emergencies, which the House did in late October to the then-extant proclamation made by Democrat Gov. John Bel Edwards concerning the Wuhan coronavirus pandemic.
Morvant clearly wanted nothing to do with it, as indicated by an attempt to sidestep the whole controversy. He made two distinct rulings, the first that the matter was moot because the petition addressed proclamation 134 JBE 2020, and that had expired with replacement by 158 JBE 2020.
This is beyond ridiculous. In essence, it means that as long as the Legislature succeeds in the petitioning process and a governor challenges that, a dilatory court could delay hearing the case – and at most a proclamation can last only 30 days – to invalidate the petition, and then rinse and repeat from there. This gives a governor dictatorial powers that extinguishes any concept of checks and balances, and thereby violates Art. IV Sec. 4 of the U.S. Constitution.
And happened in this very instance. GOP Atty. Gen. Jeff Landry, representing legislators, asked Morvant before the expiration of the previous proclamation to interdict Edwards from issuing another proclamation until the case was settled. Morvant refused and ran out the clock.
The other issue dealt with a related statute, R.S. 29:724, which states that proclamations issued under a disaster declaration “shall have the force and effect of law.” Morvant asserted that this overrode the other statute, in that to make law you needed the assent of both legislative chambers; the petition came only from the House.
But having “force and effect” isn’t the same as making law; these are separate. The objection made rests on the process, not the product which is the real object of controversy. Note how this ruling means that, legally speaking, invalidation of an emergency proclamation must occur in the same fashion as making a law, i.e. both chambers pass in identical form with a gubernatorial signature or, if vetoed, two-thirds of the seated membership of each chamber must vote to override. This creates (because by definition if a governor thinks himself correct, he’ll veto) a ridiculous two-thirds requirement for both chambers to invalidate a proclamation when legislative intent clearly was for a majority, and only for one chamber. If “law” is “law,” you can’t have one kind that always requires supermajorities and the other that doesn’t.
If a supermajority requirement were tucked into the Constitution, Morvant would have a point. But it’s not; it’s also in statute, putting two laws in conflict (and the one statute against itself; 29:724 has within it identical language to 29:768). So, what is the constitutional basis for privileging 29:724 over (half of) 29:768? Morvant doesn’t say and can’t, because there isn’t any. This is simply poorly-reasoned dreck, lending credence to Landry’s belief that Morvant wanted to dodge this case if possible but if unable to then kick it upstairs to the Louisiana Supreme Court, with the easiest way to expedite being a ruling of unconstitutionality.
Maybe Morvant personally thinks the mandates in the proclamation are a good thing and wants to see them continued uninterrupted. Perhaps he saw it as a no-win electoral situation with a ruling to discontinue in effect the mandates as losing more future votes than it would gain. Regardless, his ruling has little to do with clear legal reasoning and hopefully the Supreme Court will put matters to right.