As negotiations over how much power the Louisiana Legislature wants over Gov. John Bel Edwards’ coronavirus restrictions were set to begin in earnest, a measure to take away the ability of the state Fire Marshal to enforce those rules began moving through the State Capitol on Monday.
House Concurrent Resolution 13, sponsored Rep. Blake Miguez, R-Erath, and backed by Attorney General Jeff Landry’s office, would suspend for more than two months the enforcement powers of Fire Marshal Butch Browning’s office on COVID-19 rules.
The effort represents a small part of a broader effort by Republican lawmakers to undercut the Democratic governor's coronavirus restrictions in a special session that will end later this month.
The key plank of that effort – legislation to give lawmakers authority, or at least oversight, over Edwards' rules – is still unresolved as Republicans negotiate among themselves.
Senate President Page Cortez, R-Lafayette, said the negotiations will begin tomorrow, as he decides whether to accept House amendments to his Senate Bill 29 to give lawmakers an oversight role, but not an up-or-down vote, over the governor's decisions.
Cortez said he still has the same concerns about the proposals advanced by some House Republicans to give the Legislature the ability to end Edwards' restrictions, describing it as a separation of powers issue. He also said he's discussed the issue with Edwards' administration.
"There’s clearly a movement in the Legislature to have a seat at the table and I think they understand that now," Cortez said of the governor's office. "To the extent it doesn’t cross over the separation of powers I think that’s their concern.”
In the House, meanwhile, lawmakers continued to advance legislation that would strip the Edwards administration of its powers. The House Commerce Committee advanced Miguez's legislation on a 12-5 vote, and it now heads to the full House. It would need Senate approval, but not approval of the governor, to take effect.
The resolution by itself wouldn't have a huge effect on the coronavirus restrictions, but is part of a multi-pronged effort by Miguez to take the teeth out of the Edwards' administration's rules.
The Fire Marshal has taken a largely hands-off approach to enforcement, giving businesses multiple opportunities to come into compliance with the rules before any enforcement action. And the agency said it has not issued any penalties to businesses. Instead, the state Office of Alcohol and Tobacco Control, or the Louisiana Department of Health, are the entities that issue penalties, which can range from suspension of alcohol licenses to orders to close.
Other proposals by Miguez to take away enforcement from the ATC and the Health Department are slated for hearings in other committees, Miguez said.
He also said that while the Fire Marshal doesn’t ultimately issue the penalties, Browning’s office does have influence over businesses, issuing warnings and other directives in a “three-strike” system.
Miguez, who chairs the House GOP delegation, said he doesn’t believe the governor can delegate his powers to the fire marshal, which has gone on thousands of visits to businesses to check if they are following the state’s mask mandate for customers and employees, social distancing and other rules.
He also said he doesn’t believe the state should have any coronavirus restrictions in place mandating businesses to follow health guidelines. “Instead of mandates the government should trust its citizens to exercise personal responsibility" to keep themselves safe, Miguez said.
Two federal judges and one state district judge have already ruled that Gov. Edwards’ coronavirus rules are constitutional. In Livingston Parish, a judge ordered Firehouse BBQ to temporarily close while awaiting a hearing on its refusal to follow health rules issued by Edwards. But the restaurant ignored that judge’s order, and a judge subsequently issued a temporary injunction barring the Edwards administration from taking any further enforcement action.
Democrats on the committee argued the courts have ruled on the constitutionality of the bar closure and other rules.
“This whole thing has become political and I think it’s unfortunate,” said Rep. Royce Duplessis, D-New Orleans. “If the governor’s actions are illegal, show me a judge to rule as such. We’re spending taxpayer dollars to come in here and we’re not getting anywhere.”
Miguez said he believes a federal appeals court will eventually rule in favor of bar owners who sued Edwards and lost in federal district court over the order closing them down. A hearing is scheduled in that case on Nov. 3, according to Jimmy Faircloth, the lawyer representing the plaintiffs.
The debate comes as negotiations continue between Republican lawmakers in the House and Senate over a broader effort to loosen the state’s coronavirus restrictions further, and potentially to kneecap the Democratic governor’s ability to issue restrictions at all.
Miguez said conversations on that front were ongoing to see what the final legislation will look like.
So far, the House has advanced a host of measures that would give lawmakers the ability to strip out parts of Edwards’ executive orders, require legislative approval of such orders and even to cancel the public health emergency entirely.
But Cortez said he's still not comfortable with legislation that would go that far, expressing concern that future emergency orders on things like hurricanes could be hamstrung.