Update on Louisiana Emergency Declaration Lawsuit
by Sarah Harbison, general counsel, Pelican Institute
On Monday, the Louisiana Supreme Court issued a ruling in Gov. John Bel Edwards v. Louisiana State Legislature, et al. The court vacated the district court’s ruling that the statute authorizing the legislature’s petition to terminate the governor’s public health emergency order was unconstitutional and sent the case back to the district court for further proceedings. This ruling is the latest chapter in the legislature’s attempts to curb the executive branch’s overreach during a public health emergency. However, it will not be the last.
Let’s recap how we got to this point:
- The legislature passed HB4 in the fall special session which would have given the legislature more input on extending emergency orders issued by the governor. The governor vetoed this legislation.
- Following the governor’s veto, house members organized enough signatures to terminate the public health emergency pursuant to Louisiana Revised Statute 29:768 (B). This statute authorizes a majority of either house to terminate a public health emergency at any time after consulting with a public health authority.
- In October, the Louisiana House of Representatives delivered a petition ordering the governor to terminate the public health emergency. Instead, the governor filed a lawsuit against the legislature and its leadership.
His suit alleged that the petition was unenforceable and an unconstitutional exercise of authority. The legislature and its leadership sought a court order requiring the governor to terminate the public health emergency. Following a November Zoom hearing, a district court judge agreed with the governor that La. R.S. 29:768 (B) is unconstitutional, and the legislative defendants appealed to the Louisiana Supreme Court.
The Louisiana Supreme Court ruled that long-standing principle requires that the district court first attempt to resolve the governor’s suit on non-constitutional grounds before ruling on the constitutionality of the statute. In particular, the district court should have considered whether the legislature meaningfully consulted with a public health authority before reaching questions of constitutionality. Only after the non-constitutional arguments were addressed should the court consider the statute’s constitutionality, if such a challenge is essential to the resolution of the case. The Supreme Court vacated the lower court’s judgment and returned the case with instructions to consider whether the case could be resolved first by addressing the governor’s non-constitutional arguments.
It is expected that the district court’s ruling will come in early 2021.