SADOW: Louisiana’s Legislature Should Finish Changing State Emergency Rules

The Louisiana Legislature needs to take a cue from its counterparts in several states to improve its emergency policy-making.

As the sciences, both of the hard and social kind, continue to confirm that heavy-handed responses to the Wuhan coronavirus pandemic don’t do much to limit transmission while foisting burdensome costs to life and liberty, a number of governors before, during, and after revelation of this information didn’t follow the knowledge base. In many cases, states vested insufficient checks on gubernatorial power in use of these emergency powers that led to poor policy-making choices.

Emergency policy-making should be centralized in the executive, for more efficiency and the greater holistic view of the state. At the same time, these full-time executives are distant from the population over which they may have near dictatorial emergency powers, and face greater temptations to make these decisions on political bases, as reactions to the pandemic have illuminated.

By contrast, state legislators remain much closer to the people and their daily lives, particularly in that nearly all in America are part-time officials and they circulate regularly and live their lives in the communities they represent. Thus, to ensure that the executive doesn’t give short shrift to human lives and the impact his policies have on their well-being and liberty, legislatures should be able to put guardrails on a governor’s emergency policy-making powers.

These barely exist in Louisiana. Essentially, the governor has free rein unless a majority of one house of the Legislature ends a declared emergency (a convoluted court ruling said both houses needed to veto despite the law’s clear wording, which hopefully a higher court will correct soon). It’s an all-or-nothing proposition that doesn’t limit the governor from offering the same offending orders in the immediate future, and the cumbersome procedures discourage legislative input.

Other state legislatures have run into similar problems, and they are acting. Some have the leverage to make the needed changes through supermajorities into statute, but Louisiana Republicans, who have led the charge against the overreach of Democrat Gov. John Bel Edwards, fall just short. Edwards stubbornly has resisted beneficial change, as demonstrated by vetoes cast on reform bills in this area during last year’s Second Extraordinary Session. In any event, such an important issue regarding personal liberty and safety best resides in the Constitution.

Thus, the solution is a constitutional amendment, which Edwards can’t veto, but which will have to go before voters and might not have the supermajority needed in the House to get there. Such a bill should allow gubernatorial proclamations to last for 30-day increments extended only by majorities in both houses of the Legislature. Proclamations also must be in line item format according to the laws their text address, where the chambers vote on each individual item. The governor can’t reintroduce vetoed items in substantially identical or more restrictive form for 30 days, unless a substantially new emergency occurs that reasonably would require the intervention, with either chamber of the Legislature able to veto that new proclamation within a week. And, local governments couldn’t introduce greater restrictiveness without going through the same process occurring within seven days of issue. The amendment would specify that statute would establish an Internet-based system for legislative voting on these matters.

This does better at balancing the detached, statewide view of the governor with the more immediate, embedded understanding of their constituents that legislators have. Unfortunately, this would have to wait until a fall ballot assent to take effect, but better late than never.

Bill prefiling for Louisiana’s 2021 Regular Session that commences in April has begun. One or more versions of the above need to appear on that list.

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