Louisiana Governor Sues State Legislature to Enjoin Overturning of COVID-19 Executive Order

On October 26, the Governor of Louisiana, John Bel Edwards, sued the Louisiana House of Representatives in Louisiana state court to enjoin the legislative body from overturning the Governor’s Emergency Proclamation and State of Emergency in response to the COVID-19 pandemic that, among other things, placed restrictions on non-essential travel for high-risk populations, limited occupancy at for most businesses (including bars, restaurants, salons, and churches), and mandated the wearing of a facemask in all indoor/outdoor public spaces (where six feet between persons was not possible) for persons older than eight years of age. 

The complaint proffered that LA Rev. Stat. Sec. 29:766(A), the Health Emergency Act, authorizes the “Governor to declare a state of public health emergency…by executive order or proclamation…following consultation with the public health authority, if he finds a public health emergency…has occurred or the threat thereof is imminent.” This legislation, the plaintiff averred, results in the Governor having “broad emergency powers” that remain in place until the Governor determines that the “threat of danger has passed or the disaster or emergency has been dealt with to the extent that the emergency conditions no longer exist.” The Health Emergency Act also states, in addition to the Governor’s unilateral termination of a State of Emergency, either chamber of the LA state legislature may “in consultation with the public health authority” terminate a State of Emergency via a “petition signed by a majority of the surviving members” submitted to the Governor. 

Theretofore, on October 23, the Louisiana House of Representatives submitted a petition, signed by 65 of 105 members, to terminate the Governor’s State of Emergency and associated proclamations. The Governor’s pleading asseverated that such a petition is moot since, despite language within the Health Emergency Act to the contrary, a Governor’s proclamation of a State of Emergency can only be overturned via the passage of a new law approved by a majority of members of both chambers of the state legislature. Under LA state law, the plaintiff continued, Governor’s proclamations during times of emergency have “the force and effect of law.” This, the complaint concluded, means that one chamber of the LA legislature cannot overturn a Governor’s proclamation, else the unilateral overturning of said proclamation stood to violate the LA Constitution, which purportedly “does not authorize (a majority of members of the House of Representatives) to enact legislation, by ‘petition’, without a majority vote of the members of the Senate…”

Given the aforementioned legal standard, the Governor postulated that the court must declare the portion of the Health Emergency Act granting the legislature unilateral petition power unconstitutional and sever it from the remainder of the Act. The petition portion of the Act, the pleading contended, “may be severed from the Health Emergency Act because doing so will not affect the other provisions of the act or defeat the act’s purpose, which is to ensure that the Governor can respond rapidly and effectively to a public health emergency to protect the health and safety of the citizens of Louisiana.”