Think tank proposes requiring legislative approval to extend public health emergencies, restrictions

By David Jacobs | The Center Square

Louisiana’s governor should be required to seek legislative approval before extending a state of emergency beyond 30 days, an attorney for a conservative think tank argues.

Under current law, the governor can declare or renew an emergency declaration by executive order, though a majority of either chamber of the Legislature can cancel a state of emergency at any time. Instead, the legislature should be involved on the front end in the discussion of whether a state of emergency should be extended or not, said Sarah Harbison, general counsel for the Pelican Institute for Public Policy, which on Wednesday issued a paper about legal issues raised during a public health emergency.

The Pelican Institute previously has argued that Louisiana Gov. John Bel Edwards should lift restrictions meant to control the spread of COVID-19, citing the economic damage the restrictions cause. Edwards has said he’s following White House guidance in issuing the orders.

Individual rights should be taken into account during the public health crisis, Harbison said Wednesday.

“The constitution doesn’t go away just because there’s a pandemic,” she said.

However, the courts have not provided much clear guidance about what is and isn’t constitutional, she notes. She said judges, many of whom are appointed, have been reluctant to overturn the decisions of elected chief executives. Lawsuits seeking to throw out some or all of Edwards’ restrictions have so far been unsuccessful.

But there have been a few exceptions across the country. A judge granted a temporary restraining order to On Fire Christian Church in Louisville after the mayor banned drive-in services but continued to allow restaurants and liquor stores to operate drive-through sales.

The mayor’s edict clearly violated the clause of the U.S. Constitution that guarantees free exercise of religion, Harbison said. City officials and the church eventually reached an agreement to continue holding the drive-in services while ensuring appropriate distance between people, according to local reports.

On the other hand, religious institutions still are expected to follow the rules that apply to everyone, she said. So a pastor like Tony Spell of Life Tabernacle Church in Central doesn’t get a pass to ignore rules limiting crowd sizes.

Spell’s lawsuit against Edwards’ order failed. His appeal was dismissed as moot because the particular restriction he was challenging had been lifted by the time it reached the Fifth Circuit Court of Appeals. But Judge James Ho suggested he would have ruled for Spell if the 10-person gathering limit still had been in place because it was not being enforced against protesters.

“If officials are now exempting protesters, how can they justify continuing to restrict worshippers?” Ho wrote in a concurring opinion. “The answer is that they can’t.”

“You can have restrictions that do impact your fundamental rights, for example freedom of speech or free exercise of religion, as long as they are neutral laws of general applicability,” Harbison said.

Harbison argues government should try to tailor its restrictions as narrowly as possible. Rather than blanket bans on certain types of businesses, elected officials should consider whether any part of a business’ operations can be done in a way unlikely to spread the disease, she says.

For example, she questions New Orleans city officials’ decision to not allow bars to open even for to-go service. By contrast, Edwards’ statewide order closes barrooms but allows for to-go service and even allows bars to temporarily reclassify themselves as restaurants if they are able to meet the standards that apply to restaurants.

Harbison said the courts probably will begin to bring more clarity to how to balance constitutional rights and pandemic safety as more effective treatments are discovered and made available.