Weak appeal designed to appease Edwards' base
He took his time, but Democrat Gov. John Bel Edwards three months after losing an injunction mooting his executive order JBE 16-11 got around to appealing the ruling – a move seemingly more for political consumption than with any real hope of prevailing.
At the end of last year, District Judge Todd Hernandez ruled favorably for injunctive relief sought by Republican Atty. Gen. Jeff Landry concerning the order, which, among other things, added language to contracts that barred discrimination on the basis of “sexual orientation” or “gender identity” – terms not defined in Louisiana jurisprudence. Landry refused to approve of such contracts, noting in an official attorney general’s opinion that, because of the terms’ absence in Louisiana law or in its Constitution, the order had the effect of creating new law beyond the scope of the governor’s powers.
Hernandez agreed, although he deferred on ruling whether it violated aspects of the U.S. Constitution regarding the Commerce Clause or the First Amendment. Citing no actual controversy, he did deny the contention of Edwards that the governor was superior to the attorney general where a dispute about legal matters defaulted to the governor’s position, and granted only that once the attorney general had acted to approve of private counsel the state’s top justice officer could not retroactively review their actions.
Against this well-reasoned opinion, Edwards’ counsel essentially appealed on the basis of “says you.” The filing appears to break no new ground, just rephrasing its previous argument in a manner tone deaf to the district court’s ruling. It refers to previous executive orders on the subject – that did include sexual orientation but not gender identity – as protected classes and claims the ability to expand legal definitions as a matter of administration. It also alleges that because Landry’s real objection came as to the gender identity designation and not sexual orientation, that this presumed inconsistency renders the opposition invalid.
But this reply fails completely, even by its own admission, to address Hernandez’s conclusion that the order extends making law. Although the opinion does not go into detail why, its listing of Landry’s notation of creating undefined protected classes clearly indicates that reasoning seemed persuasive. And the new filing admits, in calling the governor’s action a “policy directive,” that the order intends to create policy with the force of law where none exists not only because of a lack of defined terms, but also because on many opportunities the Legislature has declined explicitly to define those terms as protected classes. Moreover, just because previous orders existed but went unchallenged doesn’t mean they were constitutional then, which stands regardless of whether the plaintiff found the sexual orientation designation tolerable.
The new filing also hopes to override this more specific rejection with the broader declaration of the superior nature of the governor’s office in legal disputes with an officer deliberately designed to be inferior. However, this treats the office of governor inappropriately as if it had the same constitutional status as does the presidency in the federal system. The U.S. Constitution, no questions asked, vests all executive power in the president, even granting him the undefined “executive power” to wield.
That’s not the case with Louisiana’s Constitution, which not only follows the model of all other states in fragmenting executive powers but does so to the extreme. When Edwards’ counsel writes that an inferior officer the attorney general lacks the power to set “overall policy of the executive branch of the state of Louisiana,” that ignorantly assumes that the governor does when he clearly does not constitutionally. Like it or not, the Constitution deliberately parcels out that power to different constitutional officers or boards.
Anything can happen with judges’ rulings, but a reasoned and informed decision would go against Edwards’ arguments. Still, in order to appeal to his liberal base, he at least must appear to fight for the order’s judicial life, although he obviously assigns other matters like budgeting higher priority as indicated by the temporal length between the original defense and a largely rehashed appeal.
Any court wishing to confine itself to adjudicating rather than making policy will reject Edwards’ appeal. Then we’ll see how much he wishes to pander to his supporters by pursuing the matter further, at taxpayer expense, to the state’s highest court.
Posted by Jeff Sadow at 11:20