Louisiana Solicitor General Liz Murrill

 Article II of the Louisiana Constitution provides that the powers of state government shall be divided into three separate branches —Legislative, Executive, and Judicial.  It further provides that no person holding office in any one branch shall exercise power belonging to another branch.  

Issues of separation of powers have been in the forefront since Gov. John Bel Edwards issued his first orders under the state’s Emergency Powers Act in March 2020.  Many of his decrees attempted to — in effect — make laws, in violation of Art. II.

Louisiana Solicitor General Liz Murrill is the state’s chief trial attorney.  She is appointed by Attorney General Jeff Landry.  Ms. Murrill addressed some of the separation of powers issues during her speech at the Ronald Reagan Newsmaker Luncheon on Tuesday, Oct. 12, 2021. Here follow excerpts:

LIZ MURRILL: This leads me to one of the three legs of the stool — the Judiciary.  We have filed law suits, defended lawsuits, and filed amicus briefs in a number of cases.  

The first thing we did on behalf of the Attorney General was file an amicus brief in the Firehouse Barbecue case and explain to the court how we think this works and how we think the Emergency Powers Act (La. R.S. 29:724 et seq.) works.  

If you read the Act as broadly as the Governor interprets it, then it creates a “delegation of powers” problem.  What I mean by that is the Louisiana Supreme Court has said the Louisiana Legislature cannot give away its legislative power.  

It can say, Louisiana Department of Health, you have authority to do these things and you can implement them by regulation. You have to comply with the Administrative Procedures Act.  But if it’s too vague and  doesn’t have enough guardrails on it, then it is an unconstitutional delegation of legislative authority.  So it has to have guardrails.

What the governor has said is that the portion of the Emergency Powers Act that allows the legislature to suspend a governor’s Emergency Declaration is unconstitutional.  Think of it: This passed the legislature two different times and was signed by two different governors. Then he sued the Speaker and the Legislature arguing that it was unconstitutional.  We said, “Hold up! You took the same Oath of Office we did. You pledged to uphold the Constitution of the United States and the Constitution of this state.  You can’t challenge the power of a law that curbs your power and claim you have no curbs on your authority.  You’re arguing that the law is unconstitutional makes the whole Emergency Powers Act unconstitutional.”

The Supreme Court in Minnesota took down the whole Emergency Powers Act there because it didn’t have a enough guardrails on it.  The governor can’t interpret that law to say I can do whatever I want and nobody can tell me I can’t!  There is no scenario where that is constitutional! 

We have the same Separation of Powers in our Louisiana Constitution that the federal government has in the U.S. Constitution.  In addition, we have Separation of Powers among Executive Branch officials. That’s why we in the Attorney General’s office don’t answer to the governor.  We were elected by the people.  Jeff Landry was elected by the people as the chief legal officer of the state, and that gives him the independence to issue opinions that may not be what the governor wants them to be.  And I think that’s a good thing.

It’s true for the Treasurer.  It’s true for the Secretary of State.  It’s true for BESE.  It’s true for the LSU Board of Supervisors and the Southern System.  They are all constitutionally separate entities in our government.  The Civil Service Commission is too.

The governor doesn’t have the power to say all state employees have to be vaccinated.  He doesn’t have the power to do that.  That would violate the authority of the Civil Service Commission to dictate the terms and conditions of employment for the Classified Civil Service.

Vaccine mandates can get complicated.  The place to start is with those agencies and entities that are bound by the Constitution, state or federal.  They have heightened restrictions on what they can do.  They are not only subject to all the restrictions in the Constitution but they are also in this state subject to the Louisiana Religious Freedom Act. That applies to government actors. It doesn’t apply to private actors.  Private employers are in a little different situation.   We are an at-will employment state, but there are some hoops they have to jump through.

For entities like Ochsner’s, FMOL, and LCMC, they are parties to complex cooperative endeavor agreements with the state wherein they are carrying out a governmental function.  We closed Earl K. Long. We closed Huey P.  

We have contracted with Ochsner’s’ and the others to operate our safety net care.  And these institutions are getting an enormous amount of money to do that.  They get more money than anyone else. Yet, there’s a statute that places that responsibility in the hands of LSU, not just anybody.  LSU has that obligation.  They have contracted out to fulfill that obligation with these entities.  So I think they are bound by the restrictions in the Constitution, because they are carrying out a governmental function.  That means there are hyper-restrictions that would apply to them.

La. R.S. 23:897A says a public or private employer cannot make an employee pay for a medical examination among other things.  Regarding Covid testing they want to impose, they can’t make you pay for it.  Even a private employer can’t make you pay for it.  The Advocate conveniently left that out of their story.  They said public employers can’t make you pay for it, but neither can private employers.

We just saw this great declaration of victory when LSU dropped its vaccine requirement at Tiger Stadium. They didn’t do that because we won the fight over Covid.  They did that because it’s very expensive to do what they are doing!  And they can’t even get the tests!  There’s a shortage of rapid tests.

I think reality bites. They have this massive testing plan.  They want people to come to the football games. But they will default on their bond obligation if they don’t get people in Tiger Stadium.

The whole thing with vaccine mandates for a lot of government officials including President Biden, this is more of a talking point.  It is a threat and a lot of private employers who are starting to pick up these mandates in advance so they can get ahead of it.

We’re going to challenge the OSHA rule.  We are going to sue. We’re preparing to sue over that.  We’ve publicly stated we’re going to do that. We’re actively preparing to do that with other states. There will be a lot of lawsuits over that before the ink is dry, I can assure you.  I’m not convinced they are even going to put it out, because it is so complicated.  And it’s going to conflict with our statute.  As I understand it — and the rule hasn’t come out yet — they’ve said the rules are going to say the employee will have to pay for the testing. Well, guess what that conflicts with?  Our statute!  There is some case law about preemption of OSHA statutes.  

The problem with OSHA rules is OSHA wasn’t written to deal with public health.  They were written to protect you if you handle benzene in the work place.  So if you have some dangerous condition that is a product of what your job actually is and does, that’s not what Covid is. 

Covid is endemic everywhere. You are going to run into it somewhere. It’s not specific to that workplace where you are.  We have been going for a year and a half with other public health measures that have protected people.  Employers are perfectly capable of continuing to implement reasonable health measures and to work with individual employees to protect employment.

One thing I was thinking about when we were doing the Pledge of Allegiance, I carry a pocket Constitution with me.  So I read those words a lot and think about them.  

When we do the Pledge of Allegiance, we say we are one nation under God — indivisible.  But we are divisible!  We are indivisible when we all stick together, but what this whole process has been an enormously effective effort to divide us!  That’s a terrible thing!

This big $4.3 trillion adventure is another mechanism to do that. I was at an event last night and heard a United States Senator.  He was talking about the importance of family and how family is so important to lifting a person out of poverty.  I truly believe that it is. I think education is important, and work ethic is.  And what do we see being eroded?  Family.  Education. And work ethic.

Even college kids.  When they got that $800-$900 a week check from the government, they stopped working.  When the check stopped, they did go back to work.

But not everybody has gone back to work!

We were coming back from the movie the other night, and we were noting everyone was hiring on Essen Lane. It said hiring, hiring. Mr. Gatti’s was hiring.  Taco Bell was hiring. Baton Rouge Clinic was hiring.  All four corners of the intersection were hiring!  We’ve never seen anything like this before, when the government has eroded people’s desire to work.  It is critical to get back to a solid foundation that makes us what we are as the greatest country in the world.

We can’t do everything but we can do something.  Your commitment to doing something will keep our democracy alive, and that’s what gives me hope!

It is a good thing that people are waking up.

WOODY JENKINS: This is our Revolution.  This is our World War II.  This is when we are relearning the Constitution and the Bill of Rights and the principles that make us a great country.

I’d like to see if you agree with this.  The First Circuit Court of Appeal kicked out Gov. John Bel Edwards’ suit against the Legislature this week.  They did it and said it was because it was moot, which raises some issues itself.  One thing they said that I think is axiomatic is that all statutes are presumed to be constitutional on their face until it is ruled otherwise.

LIZ MURRILL: Yes, that’s axiomatic.

WOODY JENKINS: So the governor is responsible for executing the laws of our state.  But he decided to ignore the provisions of the Emergency Powers Act which give the Legislature the power to end an emergency.  

He is the lawbreaker! That is the key thing about that opinion, in my view.  It shows that from the beginning or at least from the time the Legislators signed petition ending the state of emergency, the lawbreaker has been John Bel Edwards!

I was a member of the Louisiana House of Representatives when the Legislature considered the Emergency Powers Act [in 1992].  The reason I got involved in the legislation was found right at the beginning of the bill, and that language is in the current law.  It says that the orders of the governor have “the force and effect of law.” 

LIZ MURRILL: It’s the only place it says that in the entire Louisiana Revised Statutes.

WOODY JENKINS: That is the language that got me interested in the bill.  I had many amendments that cleaned it up.  Later I came to realize that this language is not as far-reaching as it may first appear. Let’s suppose a policeman stops you for speeding.  He stops you. Get out of the car! Let’s see your license, your insurance.  He smells marijuana.  May I look inside your car?  He decides to put you under arrest.  Madame, please place your hands behind your back!  

That, in the right circumstances, is a lawful order and it has the full effect of law.  It’s a lawful command.  It is not a law, but it has the effect of law.  You’re being ordered to do something legally.  That doesn’t mean the police officer is making law.  He’s not enacting law!

LIZ MURRILL: He’s enforcing the law.

WOODY JENKINS: Correct! He’s enforcing the law. And that’s all that statement means in the Emergency Powers Act.  He has the power to issue rules that have the full force and effect of law.

[Regarding the suit by the governor against the Louisiana House of Representatives for terminating his Emergency Order], the reason we said either house of the legislature could terminate an Emergency Order of the governor is that both houses of the legislature ought to be in agreement in order to continue an emergency.  Judge Morvant said, “Oh, both houses should have to agree to terminate it.”  No, both house should have to agree in order to continue the emergency!  That’s the law and there’s nothing unconstitutional about it!

So the Emergency Powers Act says the governor can make orders, but then it says what orders the governor can make, and it’s a finite list of things he can do.  Closing businesses is not one of those things.  Ordering masks is not on the list of things the governor can order either!

Down in La. R.S. 29:736D within the Emergency Powers Act, it says that the governor shall not do anything to diminish any of the right contained in the Declaration of Rights of the Louisiana Constitution or the Bill of Rights of the United States Constitution.

R.S. 29:736D. Exclusion

Nothing in this Chapter [the Emergency Powers Act] 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.

Acts 1993, No. 800, §1, eff. June 22, 1993

What that is saying to any governor or judge or member of the media, or citizen is this: Whatever you’re reading here, remember: Anything the governor does is subject to the constitution!  He can’t make up laws!,

LIZ MURRILL: Thank you for that, because I think that is really, really an important part of the whole Act. Our view is — and these are some of the basic tenets of constitutional construction — the statutes are presumed constitutional until they’re declared otherwise. 

You have the “delegation limitations.” That means there have to be certain boundaries [or the action would violate Separation of Powers]. The legislature can’t give 

broad, vague boundless authority away.  It can’t do that! The Emergency Powers Act has expressed limitations. Those limitations would exist even without 736D. 

Woody and the legislature at the time saw the wisdom of putting the Constitutional limitations in black and white in the Emergency Powers Act.  R.S. 29:736D says nothing in the Emergency Powers Act should be construed to violate the Bill of Rights, the Declaration of Rights in the State Constitution, or to change the Separation of Powers. 

It was an important statement of limitation on the scope of the power of the governor. This is what all our fights come down to — what does it mean for the governor to be able to issue an executive order that has the force and affect of law? 

We know he can’t make law, we know that there are limitations on the legislature’s ability to delegate its power. So we view that as, well, he can do these things that they listed and if he does these things that are listed, then the legislature has sort of pre-approved them and said that’s okay. 

I’ll tell you one of the things in that list of powers is “commandeering” and we have pointed out that the only safe harbor for some of the things that he’s done, like closing businesses down or shutting down bars and restaurants, falls under that provision. The problem is, he hasn’t paid anybody for it. 

The problem is that commandeering is a taking, and if it’s a taking, you’ve got to pay for it. Those provisions are still pending. Those are still in litigation, by the way. The bill may be coming. 

Woody, I think part of the problem is that there have been very few judges that really had the backbone to wrestle with some of these problems and to issue orders. [However, there are some judges who have had] the courage to say, the governor’s powers are limited. In one of the bar owners cases, the governor’s attorneys came to court and made some astonishing arguments. 

They said the governor can pretty much do anything he wants and they can ding you for it as a character violation, if you violate the order. I mean, think about that, if the governor has no restrictions at all on what he can put into an executive order and claim that it has the force and affect of law and then he can send out Butch Browning, the Fire Marshal, and the ATC to threaten your business licenses and threaten you.

AUDIENCE: The brown shirts.

LIZ MURRILL: Thank you, I mean you know.  I think that it is an astonishing threat to our government structure, and I really wish I would see more judges wrestle with that threat. I did see those two judges in Gretna do it.  ATC has appealed those cases and we will file amicus briefs. In fact, I think we already have filed it in both those cases, and we will file them at the Louisiana Supreme Court. 

We’ve filed them in Jeff’s cases involving Fire House Barbecue. 

We have defended the legislature and won in those suits where governor initiated a suit against the legislature. 

By the way you can’t sue the legislature! They’re not a juridical entity.  You can’t sue the legislature and you can’t sue them for carrying out their legislative functions. They have something called privileges and immunities. 

I think that there are all kinds of civics lessons in this tortured process that we’re going through. 

You know, the book has yet to be written on how this plays out. I am hopeful that we will have a new governor who is more like George Washington, someone who cares more about the long-term survival of our republic, our state government, and our ability to govern ourselves. That person shouldn’t pull all that power unto herself or himself and should recognize that we need to make changes that will protect us for the long term. If we see that happen, that will be a real sign of improvement.