The Pelican Institute recently reviewed how
Louisiana government deals with public health crises. Undoubtedly prompted by Democrat
Gov. John Bel Edwards’
policies addressing the Wuhan coronavirus pandemic, the effort evaluates state
law governing the issue and makes suggestions for improvement.
Edwards has faced criticism
for policy on this that seems to rely more on arbitrariness than science that
has led the state to ring up some of the worst indicators related to the
pandemic while having some of the most restrictive rules. But, as the report
notes, the reigning jurisprudence on government police powers gives officials
wide latitude over restrictions placed upon commercial activity and personal behavior
as long as those rules don’t interfere with individual liberties, where a much
more stringent standard applies.
Thus, the question becomes one of policy options,
and here the report questions whether Louisiana’s emergency regime contains too
few checks on the governor’s power. Other than advising upon prevention of curtailment
of fundamental liberties or completely vetoing a state of emergency and all the
provisions that go with it, the Legislature has no input into this kind of
policy-making. This concentration of power in the hands of one official
increases the chances of its abuse or of inferior policy-making choices occurring
at the expense of the citizenry.
Drawing upon other states’ approaches, the report
makes two sensible suggestions that likely would have improved Louisiana’s
response during this pandemic. Statutes that would require the governor to seek
legislative approval to extend a state of emergency beyond 30 days rather than
unilaterally and clarifying that the termination of an emergency due to a
natural disaster or act of terrorism does not affect the governor’s ability to
declare a public health emergency the report backs.
It could go further. The ability to extend a
public health emergency could have applied to it a line-item veto. A gubernatorial
proclamation addressing this must list the parts of statute and related
instruments of law such as civil and criminal codes affected. Statute could
specify this and give the legislature the right to veto individual sections
while letting others stand after 30 days. It further could specify that new legal
alterations for the same emergency could be added only once every seven days,
and if a set of expiring restrictions is vetoed these could not be reintroduced
for another 30 days without legislative approval.
This kind of 30-day free trial avoids the conflict
and potential problems Arkansas is having with its policy response to the
pandemic. Some legislators there have sued its governor, saying that he didn’t
allow proper vetting of his restrictive proclamations by that body. But more
stringently interpreting its law on this to give greater legislative input into
the process critics argue slows down things that could hamper immediate and
effective response.
By giving 30 days under the policy, this awards
time to evaluate the policy for effectiveness and its impact on the citizenry
while not dragging out implementation. If not effective enough and/or too
onerous, legislators can discard a directive with minimal harm done.
Where charters give local government chief
executives emergency powers, a similar arrangement could exist. The Legislature
could pass a law affording local legislative organs the same kind of power,
except that these cannot veto any local restriction that does not go beyond a
state restriction in force.
Louisiana’s inferior pandemic response, almost
solely a product of Edwards’ decision-making, acts as a case study in what
happens when sufficient checks-and-balances don’t exist in the making of
emergency policy. Making changes to beef up these needs to happen as soon as
possible.
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