Governor’s Emergency Powers Do Not Include Closing Businesses or Masking

By Woody Jenkins, Editor • The governor’s Emergency Powers under La. R.S. 29:721 et seq are much more limited than he has told the public.  Since March 2020, Gov. John Bel Edwards has issued more than two dozen Emergency Orders, which have been presented by the news media as valid and lawful. Few if any have challenged the governor to provide the statutory basis allowing him to assume such power and issue such far-reaching orders.  

One of the most controversial orders was to lockdown the state and shut tens of thousands of small businesses.  Another was to order citizens to wear masks.  However, a review of the applicable statute shows there is no grant of power to the governor to close businesses or mandate masks.  Nevertheless, the Emergency Powers Act does allow the governor to limit or restrict the sale of alcohol, firearms, explosives, and combustibles.

Furthermore, La. R.S. 29:736D makes it clear that the governor has no power to diminish any of the rights of citizens under the Declaration of Rights of the Louisiana Constitution or the Bill of Rights of the United States Constitution.  It also protects the powers of the legislature and the judiciary, making it clear that the governor’s powers are principally limited to control of the executive branch,

Powers of Governor in a Declared Emergency (R.S. 29:724)

C. The declaration of an emergency or disaster by the governor shall:

(1) Activate the state’s emergency response and recovery program under the command of the director of the Governor’s Office of Homeland Security and Emergency Preparedness.

(2) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery.

(3) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.

D. In addition to any other powers conferred upon the governor by law, he may do any or all of the following:

(1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.

(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster or emergency.

(3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.

(4) Subject to any applicable requirements for compensation, commandeer or utilize any private property if he finds this necessary to cope with the disaster or emergency.

(5) Prescribe routes, modes of transportation, and destination in connection with evacuation.

(6) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.

(7) Make provision for the availability and use of temporary emergency housing.

R.S. 29:726(D) Strongly Limits Governor’s Powers

La. R.S. 29:736(D) provides:

D.  Nothing in this Chapter shall be interpreted to diminish the rights guaranteed to all persons under the Declaration of Rights of the Louisiana Constitution or the Bill of Rights of the United States Constitution.  This Chapter shall not violate Article II (Distribution of Powers), Article III (Legislative Branch), or Article V (Judicial Branch) of the Louisiana Constitution.  The courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.  The orders of all courts shall have their full force and effect.  The legislature may call itself into session at any time and shall exercise its powers and duties.  Its ability to enact law, appropriate funds, and confirm appointees shall be in full force.  The privileges and immunities of legislators shall be respected.