On December 14th, 2016, Louisiana 19th Judicial District judge Todd Hernandez effectively struck down a controversial Executive Order issued in July of 2016 by Louisiana Governor John Bel Edwards. The Executive Order, JBE 2016-11, was titled “Equal Opportunity and Non-Discrimination. It created a de facto ban on discrimination and/or harassment based upon “race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability, or age” of any state employee in the workplace or the hiring thereof. It also created the requirement that language prohibiting the same be placed in state bid contracts and that those private companies doing business with the state be bound by the same restrictions/conditions. On November 29, 2016 Louisiana Attorney General Jeff Landry brought suit for permanent injunctive relief enjoining further enforcement of the Executive Order (It had been enforced since its July 2016 signing) and a declaratory judgment in regards to the issue of whether the Executive Order was ‘ultra vires’ or beyond the powers of the Governor. Additionally the suit sought a declaratory judgment as to whether it violated the Commerce Clause of the US Constitution and the privacy and free speech protections of the Louisiana Constitution. Governor Edwards, in the peculiar Louisiana styled action called a Plaintiff in Reconvention, counter sued Attorney General Landry, seeking a declaratory judgment that the office of Governor was a constitutionally superior state office to that of the Attorney General. It further asserted that as both were in the same branch of government that the Governor must be held superior to the Attorney General in any dispute between the two. Judge Todd Hernanadez of the 19th Judicial District Court in Baton Rouge granted Attorney General Jeff Landry’s petition for a permanent injunction against enforcement of Executive Order JBE 2016-11. He also ruled in favor of the AG in his plea that the Executive Order was ‘ultra Vires’ or beyond the powers given the Governor by the Louisiana Constitution. The other issues bore a mixed outcome that may one day be revisited. Regarding the issue of whether JBE-2016-11 exceeded the Governor’s Constitutional authority and constituted an act beyond (ultra vires) the governor’s legal powers, personally I think that Judge Hernandez’s decision was correct. It was on this issue that he granted the injunctive relief and declaratory relief. Regarding other issues such as whether JBE 2016-11 violated the US Constitution’s Commerce Clause (Hernandez ruled that it didn’t), whether the Governor was a superior constitutional officer (Hernandez ruled he was but that it didn’t mean that any dispute between the AG and the Governor must be decided for the Governor), and whether JBE 2016-11 violated First Amendment protections and privacy rights (Hernandez ruled it didn’t) , I’m not so sure and won’t address.
EXECUTIVE ORDER RULES OF THUMB
Unlike in the federal government where there really aren’t any laws or direct constitutional provisions defining what is, and what isn’t, subject to an Executive Order, there are specific laws spread out in the Louisiana R.S.’s that address the issuance of Executive Orders. Still the generally accepted (but not always codified) basic rules of thumb for a lawful executive order are applicable and pretty much mirrored in the Louisiana Revised Statutes.: This is my summary of those ‘rules of thumb’ 1 – Executive Orders should only bind appointees and employees of the Executive branch of the government and should never be binding upon people or businesses or entities outside the executive branch and certainly not on private citizens. Think of them like a private policy memo citing how a rule or law is being executed, not making a law or rule. JBE 2016-11 failed that benchmark in that it not only attempted to bind members of the Executive Branch but all , “…state agencies, departments, offices, commissions, boards, entities or officers of the State of Louisiana” and all contractors who wish to bid on state contracts. It did so by arbitrarily and without reference to law, dictating their internal hiring practices should they wish to bid on state contracts. 2 – Executive Orders should only further execution of an existing law and that law must be specifically cited. Furthermore the manner in which the executive order directs the execution of that law should be specifically stated with that aim in mind. JBE 2016-11 fails in that it never cites a specific law of which it is in furtherance. Instead it makes a vague and unsupported reference to Article 1, Section 1 of the Louisiana Constitution. 3 – Executive Orders should never be issued in an attempt to create fiat law, most especially when said law has been proposed before and has not passed. A notable exception would be as a stop-gap measure in the event of an unforeseen state emergency. In the case of an unforeseen emergency the order must be temporary with a stated expiration date or an expiration date tied to consideration of the matter by the state legislature. JBE-16-11 fails in this regard by in fact creating a legal special class status for, “ sexual orientation, gender identity” classifications that had never been established by state law. This de facto law was created despite the fact that the very issue was not only broached before but was also rejected (Senate Bill 436 on March 24th 2016) .
LOUISIANA REVISED STATUTES PROVIDES SPECIFIC GUIDANCE AS TO THE ROLE OF EXECUTIVE ORDERS.
The Louisiana R.S. statutes actually give some more form to the purpose and scope of an Executive Order, whether by the Governor or a Parish President or even a department head in a government agency. Those that are the most importance and define or at least partially define a governor’s powers and restrictions in the issuance of an Executive Order are: R.S. 49:215 which summarizes the purpose of Executive Orders by the Governor under Heading A
Executive orders; procedures; limitations The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.
Again as stated above, JBE 2016-11 was not in furtherance of a law, in execution of a law but in effect a law. RS 29:7 deals with the authority of a governor to issue Executive Orders for a limited time to respond to an emergency. JBE 2016-11 addressed no emergency RS 42:375 – Deals with creating, filling, or prohibiting the filling of ,vacant positions in the executive branch ONLY. JBE 2016-11 had naught to do with vacancies and sought to in fact bind all state agencies including the Office of Procurement AND private contractors. RS 39:75 – Allows the governor to issue freezes on spending in the Executive branch ONLY if such spending will result in a deficit. It had naught to do with spending freezes. RS 47:820-51 is quite interesting in that it allows the governor to issue Executive Orders if no laws had been passed by July 11, 1989,
“as are necessary to dismantle, eradicate, and remedy any and all discrimination and is specifically authorized to direct the secretary of the Department of Transportation and Development to promulgate emergency rules and regulations in accordance with the provisions of the Administrative Procedure Act to require black or women or French Acadian set-aside or preference programs on all construction projects whose funding is derived from monies collected under the provisions of this Chapter and on those construction projects enumerated in the act of the legislature which act originated as House Bill No. 17 of the 1989 First Extraordinary Session of the Legislature. “
This Statute was not however cited, as a law that was being executed by the order. That’s likely because laws prohibiting discrimination based upon national origin, gender and race in the awarding of state contracts have already been passed and the other categories named in JBE 2016-11 were not addressed in this statute.
JBE 2016-11 CITES NO SPECIFIC AUTHORITY
JBE 2016-11 does not, in fact, cite any specific law of which it was in aid. and by failing to do so failed to conform to the first benchmark of a constitutionally legitimate executive order. Instead it recites Article 1, Section 1 of the Louisiana Constitution:
“All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state;”
IT DOES NOT FOLLOW
Following reference to Article 1, Section 1 JBE 2016-11 makes an illogical and grossly unsupported claim, a non sequitur of shameless audacity when it twists the meaning of this Article and Section, into this conclusion:
WHEREAS, in furtherance of these principles, the State of Louisiana is and should be committed to providing equality of opportunity for all of its citizens;
There is of course no mention of providing equality of opportunity for citizens in Article 1, Section 1 anymore than there is mention of providing equality of income or outcomes. Such a non sequitur is perhaps loosely based on the phrases ‘promote the happiness’ and the ‘general welfare’.
PROMOTION OF HAPPINESS & THE GENERAL WELFARE
The promotion of happiness is a thing that cannot be championed by government to favor one trait or human behavior or belief over another. If the championing makes one group happy and restricts and makes miserable the other, then government action to promote a specific happiness of one man over the specific happiness of another is clearly not an action that can be construed as the promotion of happiness. The best that can be done is the prohibiting of government persecution of a man or woman for behaviors that make them happy yet do not cause physical harm to others or cause a taking of their property. The General welfare clause is debated at every level of US government and in many nations throughout the world. It is often wrongly used to justify any intrusion into the lives of citizens that is explained away as some prophetic view of a net betterment of the welfare of the citizenry as a whole at the expense of individuals. Regarding the ‘General Welfare” reference in the US Constitution, James Madison explained in Federalist 41 that the term general welfare referred to the enumerated powers that followed the phrase immediately, not any unenumerated powers.
“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.” But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
In almost exact fashion the Louisiana Constitution follows the use of the term General Welfare as well as the term ‘promote happiness’ by a specifc, finite, enumerated list of those actions that are general to the population and proper to the state government. This list is the list of general welfare and the promotion of happiness specific powers and duties referred to in the Article 1, Section 1. As Madison stated in Federalist 41, “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” Immediately following Article 1, Section 1 are Article 1, Sections 2-27, all of which enumerate exactly the powers of the state, none of which address private right of equal opportunity .
- 2. Due Process of Law
- 3. Right to Individual Dignity
- 4. Right to Property
- 5. Right to Privacy
- 6. Freedom from Intrusion
- 7. Freedom of Expression
- 8. Freedom of Religion
- 9. Right of Assembly and Petition
- 10. Right to Vote; Disqualification from Seeking or Holding an Elective Office
- 11. Right to Keep and Bear Arms
- 12. Freedom from Discrimination
**Note that §12. Freedom from Discrimination specifically addresses, “…access to public areas, accommodations, and facilities, every person shall be free from discrimination based on race, religion, or national ancestry and from arbitrary, capricious, or unreasonable discrimination based on age, sex, or physical condition” It in fact already defines protections against discrimination by the state in those areas determined to be biological and situational predetermined conditions. This protection was already codified and had it been the sole subject of JBE 2016-11 then JBE-16 might have been a legitimate executive order only if it only affected hiring and contract awards in the Executive Branch.**
- 13. Rights of the Accused
- 14. Right to Preliminary Examination
- 15. Initiation of Prosecution
- 16. Right to a Fair Trial
- 17. Jury Trial in Criminal Cases; Joinder of Felonies; Mode of Trial
- 18. Right to Bail
- 19. Right to Judicial Review
- 20. Right to Humane Treatment
- 21. Writ of Habeas Corpus
- 22. Access to Courts
- 23. Prohibited Laws
- 24. Unenumerated Rights
Section 24. in fact specifically addresses the issue of government overstep like JBE 2016-11
- 25. Rights of a Victim
- 26. State Sovereignty
- 27. Freedom to Hunt, Fish and Trap
A FURTHER ILLOGICAL LEAP
So Article 1, Section 1 did not, nor should, commit the state of Louisiana to providing equal opportunity for all of its citizens, nor was it a specific law of which the order was in furtherance. Then in even more brazen fashion, JBE 2016-11 illogically leaps yet further, by means of begging the question and citing it’s previous non sequitur when it states:
WHEREAS, the State of Louisiana is and should be committed to maintaining a work environment for its citizens that is free of harassment and discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability, or age.
In fact the creation of special legal protections for LGBT citizens was the subject of previous state and local legislation. On the state level it was defeated (Senate Bill 436, May 24th 2016). The state of Louisiana has considered the issue and rightly or wrongly it has declined to pass laws creating special class protections for the LGBT community in the private workplace.
INFERRED RIGHTS FOR ALL INDIVIDUALS OR COMPANIES TO PARTICIPATE.
JBE 2016-11 aside, it could be fairly argued that such protections do in fact apply in the government workplace but not because of the LGBT designation or classification. Instead such protections could be considered implied following the principle of equal access to providing government services by individuals accepting employment or owning businesses that won, by defined merits, state contracts. In other words, all citizens that want to work for the government as employees have a right to not be discriminated against because of any non work related factor because their standing as taxpayers and citizens qualifies them for consideration. Similarly, all companies, regardless of their opinions on sexuality or gender identity, have the moral and legal right to both bid for state contracts and receive same if they are the winning bid. Likewise they have the right to hire or refuse to hire anyone not in a classification specifically prescribed as protected. JBE 2016-11 does not purport to execute any lawful legislation but instead to substitute fiat law for law that was considered and defeated.