Ruling for Gov. Edwards is as much a loss for Jeff Landry as it is for House Republicans

Judge disagrees with attorney general that petition statute is constitutional

November 13, 2020 8:58 am
Jeff Landry sues ULM med school over vaccine mandate

Attorney General Jeff Landry and elected officials from other state sued over President Joe Biden’s decision to pause oil and gas leases.(Photo by Drew Angerer/Getty Images)

In an attempt to be cute, Louisiana Attorney General Jeff Landry tweeted Monday that the statute Republicans in the Louisiana House used to order a halt to the governor’s public health emergency order is so simple that even a Bama fan can understand it. Landry’s tweet — meant as an insult to Gov. John Bel Edwards and everybody else who has objected to what House Republicans did — highlighted the part of the state’s Health Emergencies Act that says that a petition signed by a majority of a single chamber of the Louisiana Legislature can put an end to such orders.

Landry rather quickly deleted that tweet, but not soon enough that we didn’t get to see a half-thought out argument that went like this: The petition process is written down in Louisiana law; therefore, the legality of what state House members are doing should not be questioned.  

But no one was arguing against the existence of a law allowing a petition process. The governor said he wouldn’t acknowledge the petition because he doesn’t believe that process is constitutional.

Has Landry never seen a law he believes is unconstitutional?

That’s a joke, of course. Back in July, Landry issued an official attorney general’s opinion that Gov. Edwards’ order shutting down bars and mandating face masks for the general public “does not pass the constitutional test” and “cannot be enforced with criminal or financial sanctions.”  With Landry’s opinion in their hands, two groups of bar owners went running to separate federal courts, and both federal courts let them know that the order did not offend the Constitution and that they’d been misled by the state’s attorney general. In New Orleans, U.S. District Judge Martin Feldman mentioned the AG by name, writing, “Attorney General Landry’s thoughtful opinion is due respect, but it lacks the force of law and binds neither the Court nor the Governor.”

Judge rules petition statute House Republicans used unconstitutional, marking win for governor

Also, the same day that Landry made a tweet implying that a law is a law is a law and that even the slow witted should understand that, he was hoping that the U.S. Supreme Court would look favorably on his argument that the Affordable Care Act, which is every bit as written down as the state’s Health Emergencies Act, is unconstitutional.

The hypocrisy of Landry simultaneously arguing that the petition process is obviously allowed because it’s in the law and the Affordable Care Act should not be allowed despite it being law would be funny if those arguments didn’t potentially imperil the people Landry purports to care about.

Even before the most recent explosion of COVID-19 cases across the country, Louisiana’s public health officials were arguing that putting an end to the governor’s public health emergency — even temporarily — would have a disastrous effect in Louisiana. But because the country has averaged well over 100,000 cases each day in the last week and because we’ve seen recent daily death tolls reach as high as 1,600, the dangers of a relaxation of the state’s restrictions are even more obvious.  

Also, it will always be awful to make an argument that would take away health care from Americans and make them subject them to the discretion of insurance companies who can turn them away for having pre-existing conditions. But it’s especially cruel to proceed with that argument during the middle of a pandemic that has sent more than a half million Americans to the hospital.

There’s always a risk in trying to guess how the U.S. Supreme Court will rule based on the questions justices ask and the remarks they make, but some court watchers believe that the court is not inclined to trash the Affordable Care Act. As for the petition process that Landry said that even a simpleton could understand, well, a state judge ruled Thursday that, like Edwards has argued, it’s not constitutional.

Judge William Morvant of the 19th Judicial District Court in Baton Rouge said a petition signed by a majority of both chambers of the Louisiana Legislature would enjoin Edwards but not a petition signed by a majority of one chamber. “Look, if you had brought me a petition signed by both chambers, I would have granted the mandamus so fast it would have made the governor’s head spin,” Morvant said.  But the petition was only signed by a majority of the House.

“We still believe the law to be Constitutional,” Landry tweeted after the judge’s ruling. But, as a federal judge in New Orleans ruled in August, Landry’s opinions aren’t law and aren’t binding. Morvant said Thursday that the Louisiana Supreme Court is likely to have the last word in the matter.

Gov. Edwards hasn’t been perfect or perfectly consistent during the management of this pandemic, but he has been far more concerned about keeping the people of the state healthy and alive than his Republican counterparts have. Even with Edwards’ concern and vigilance, we’ve lost almost 6,000 Louisianians to this virus. How many more might we have lost if the “Open up the state!” argument had prevailed?

After the judge’s ruling Edwards released a statement that pointed out the unconstitutionality of the law allowing the petition and called the ruling “a victory for public health in the state of Louisiana and for all of those people, from our health care heroes, including our doctors, nurses and other medical professionals to our scientists and researchers, who are fighting every day to slow the spread of COVID and save lives here.” 

In a press release, Landry outright ignored the judge’s statement that the problem with the petition is that only one chamber signed it, writing, “Today, the Court effectively ruled the Governor may make law without any legislative oversight — this turns Louisiana into a dictatorship under King Edwards.”

If your first cutesy argument doesn’t work, why not try another one?

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Jarvis DeBerry
Jarvis DeBerry

Jarvis DeBerry, former editor of the Louisiana Illuminator, spent 22 years at The Times-Picayune (and later as a crime and courts reporter, an editorial writer, columnist and deputy opinions editor. He was on the team of Times-Picayune journalists awarded the Pulitzer Prize for Public Service after that team’s coverage of Hurricane Katrina and the deadly flood that followed. In addition to the shared Pulitzer, DeBerry has won awards from the Louisiana Bar Association for best trial coverage and awards from the New Orleans Press Club, the Louisiana/ Mississippi Associated Press and the National Association of Black Journalists for his columns. A collection of his Times-Picayune columns, “I Feel to Believe” was published by the University of New Orleans Press in September 2020.