Legislature votes to give itself the right to tweak governor’s emergency order

By David Jacobs | The Center Square

Louisiana legislators have approved a bill that would let lawmakers change a governor’s emergency order.

Members of the state House of Representatives and Senate agreed to the amendments to House Bill 4, sending it to Gov. John Bel Edwards’ desk where it may face a veto.

Under current law, either of the Legislature’s chambers can end an emergency order with a majority vote. The statute hasn’t been used and Senate President Page Cortez has suggested it might not hold up in court.

Under House Bill 4, which both bodies approved Tuesday, the governor would retain his ability to issue a state of emergency or disaster declaration, and still could call for a renewal after 30 days. But once the renewal is issued, the speaker of the House, president of the Senate, and the president pro tempore (the second-highest position) of each chamber would be directed to review the renewal.

If at least two of the four officers, including at least one from each body, agree that the renewed proclamation exceeds the governor’s authority or is not narrowly tailored to address the emergency or disaster, lawmakers would send the governor a description of their complaints. Legislative staff then would send ballots to the remaining members of the Legislature, who could cancel the executive order or certain provisions of the order through a majority vote of both chambers.

The bill by Rep. Mark Wright, a Covington Republican, is one of several instruments from Republicans frustrated by Edwards’ management of the COVID-19 pandemic. Some lawmakers want to lift all the restrictions meant to control the spread of the new coronavirus, while others have called for tweaking the orders with legislative input.

Sen. Patrick McMath, the Covington Republican who carried the bill on his side of the Capitol, said some lawmakers are frustrated at what they see as “inconsistencies” in how the COVID-19 mandates apply to different businesses and activities. HB 4 would give legislators “a seat at the table,” he said.

Rep. Blake Miguez, an Erath Republican who has been outspoken about wanting to end the Edwards’ pandemic mandates, said HB 4 doesn’t target any particular governor. He said any governor potentially could become “tyrannical” without the potential to be checked by the Legislature.

Sen. Jay Luneau, an Alexandria Democrat, noted that all of the governor’s actions have been in line with guidance from the U.S. Centers for Disease Control and Prevention and the White House’s coronavirus task force.

“It could have been much, much worse than it was,” he said, referring to the COVID-19 death count. Luneau said he wants to get back to normal but doesn’t want to get there by “stepping over a lot of dead bodies.”

Much of the discussion among House members involved Republicans seeking assurance that legislators would retain a single chamber’s ability to end an emergency order. Miguez assured them they would.

Edwards has pointed to the mitigation methods he put in place, which include capacity restrictions on businesses, limitations on crowd sizes, and a requirement to wear face and nose coverings in public, for keeping the pandemic under control. The governor’s office on Tuesday shared White House data showing Louisiana ranks low nationally and among southern states for recent case growth and the percentage of COVID-19 tests coming back positive.

Edwards has said he would consider any bill that comes to his desk. But he has said that emergencies are not best managed by committee, and that he has no intention of giving up any of the tools he has to deal with the public health emergency. The administration has been sued by a number of business owners seeking to overturn some or all of the restrictions, though no court has yet ruled against the governor.

The Senate voted 23-13 to send HB 4 back to the House, which voted 54-30 to concur in the Senate’s amendments. Neither vote total would be enough to override a veto. There were 15 House members listed as absent the first time it passed the chamber and 21 absent Tuesday.

The Pelican Institute for Public Policy, which has been critical of Edwards’ use of emergency powers during the pandemic, said HB 4 doesn’t go far enough in checking the governor but is a good first step.

“While the bill passed by the legislature today is a positive step forward, it does not go far enough to address the imbalance that exists in our current emergency powers structure,”” Pelican CEO Daniel Erspamer said. “That said, we appreciate lawmakers coming together throughout the legislative process to advance a compromise measure to the Governor’s desk. Checks and balances are a bedrock principle of the American system of government, and HB 4 is a positive step toward adding the oversight needed in Louisiana’s emergency declarations process.”

Erspamer called on the governor to sign the legislation.