John Adams in a February 2, 1816 letter to Thomas Jefferson stated, “Power must never be trusted without a check.” Never has this notion been more applicable than now. The COVID-19 executive orders put in place under the signature of the governor continue to be an unchecked power. Governor Edwards’ initial executive order was put in place over six months ago, and during that time the Louisiana legislature has virtually been kept out of the conversation and unable to provide any input with regards to how to respond to this health pandemic.
It is true that Louisiana’s laws regarding health emergencies provide nearly exclusive power to the Governor. As the leader of the executive branch, this is the right place for the power to lay in the very short term, as the Governor has access to information quickly, resources available upon request and the ability to respond to emergencies in an expedited manner. While public safety is a vital role of government – particularly state government pursuant to the Tenth Amendment of the US Constitution, the emergency powers are intended to be limited both in time and in scope. Emergency declarations are intended to preserve safety in the short term, not restrict freedom and liberty, for months on end.
In our current situation, more information has become known about how to minimize the spread of the virus, treat those who are sick, and protect those who are at high risk, yet the restrictions on freedom continue. It is clear that COVID-19 is not simply going away, although scientists and health experts are working diligently to control the spread, treat the infected, and are working on a vaccine. Personal responsibility is key to maintaining these advances, not unilateral gubernatorial declarations.
As the response period extends for an unknown timeframe, the governor’s restrictions on personal liberties and freedom must be questioned and debated based on facts. During this health emergency and any in the future, the people – through their elected representatives – must have more influence, knowledge, and input on making the decision on whether governmental restrictions are needed, and if so, to what degree. To this end, during the upcoming special session, legislation will be introduced to provide a check on the continuation of any emergency declaration after 30 days. This legislation should require the Governor and his administration to provide data and support to the legislature as to why the executive order should be continued every thirty days.
Additionally, legislation will be introduced clarifying the law regarding the governor’s ability to issue a natural disaster and a public health emergency simultaneously. As part of that legislation, clarifying language that spells out the legislature’s ability to terminate one declared disaster while also maintaining another declared emergency such that it would be unaffected (i.e. an emergency declaration for a hurricane can be issued at the same time a public health emergency is terminated) is needed.
Both the United States and the Louisiana Constitutions require checks and balances of the executive – especially during the continuation of a state of emergency limiting freedom and liberty. As James Madison provided in Federalist 51, “it may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses of government.” Providing limits to the ability of the Governor to issue a state of emergency for an extended period of time without legislative oversight will restore the principles necessary to ensure the proper function of our government and while adhering to our constitutional principles.
Thomas A. Pressly | Louisiana State Representative | District 6