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AG Landry calls Louisiana order closing bars and requiring masks unconstitutional

Louisiana Attorney General Jeff Landry announces a drug donation meant to help in the fight against COVID-19 on April 6, 2020, as Gov. John Bel Edwards sips water and listens.

(The Center Square) – Louisiana Attorney General Jeff Landry says Gov. John Bel Edwards’ recent executive order mandating face coverings, closing bars and limiting gathering sizes to contain COVID-19 is unconstitutional.

In an opinion issued Wednesday at several Republican legislators’ request, Landry says the mandate is too vague and too broad. He says the order undermines its stated goals with numerous exceptions and turns private businesses into an “enforcement arm” for the governor’s order. An attorney general’s opinion does not carry the force of law.

Edwards defended the order on his monthly radio show, saying it is within his constitutional authority to handle a public health emergency.

“There is no doubt in my mind that what we did is not just warranted by the circumstances we face with COVID-19, it’s required,” the governor said.

Edwards and Landry often are political rivals. But in March, Landry stood with Edwards and said the governor’s initial order addressing the COVID-19 pandemic was within his emergency powers as chief executive.

At the time, Landry said Edwards was “acting with restraint and consideration of individual liberty and freedoms.” The initial order closed bars, theaters and fitness facilities, limited restaurants to delivery and carryout only, and banned gatherings of 50 or more people in the same room among other restrictions.

Landry says he supported the initial restrictions in hopes of ensuring the state’s health care facilities were not overwhelmed with patients. In his written opinion, he says “we seem to have achieved that purpose.”

Hospitalizations of COVID-19 patients peaked at 2,134 in April, according to the Louisiana Department of Health. The count fell throughout May and early June before starting to rise again; there were 1,369 COVID-19 patients in hospitals as of noon Wednesday, LDH says.

The attorney general says the executive order fails to define several terms, making it impossible for residents to know if they are violating its requirements. For example, it requires face coverings to be worn over the nose and mouth in commercial establishments without defining “face covering” or “commercial establishment.”

Attempting to force a business to comply by revoking its license to operate, which the Edwards administration has threatened to do, would violate due process and expose the government to civil liability, Landry says. Business owners who attempt to enforce the mask mandate also could be subject to lawsuits, he says.

“Arbitrary and discriminatory enforcement is not only possible, it is highly probable and even encouraged by this order,” he says.

Nothing in the statutes related to the governor’s emergency powers authorize the governor “to make businesses his proclamation enforcement police,” the opinion states.

The provision limiting crowds to 50 people in any single indoor space is irrational, Landry says, in part because it makes no distinctions related to the size of an indoor space or its capacity, so that a small room seems to be under the same restriction as the Superdome. The order also undermines itself by exempting numerous types of establishments, such as those deemed “essential” by federal guidelines, he says.

“A rule that has so many exceptions that it undermines its very purpose is unconstitutional because it is irrational and fails to serve a legitimate government interest,” the opinion states.

Lawmakers passed legislation this year meant to shield businesses from lawsuits from customers and employees who contract COVID-19. But the statute is premised upon companies following U.S. Centers for Disease Control and Prevention guidelines, Edwards said.

“[Landry’s] opinion would potentially lead some businesses and some employers not to follow the CDC guidelines and would threaten their ability to enjoy this immunity,” he said.

On Tuesday, Vice President Mike Pence said he supported Louisiana’s imposition of a mask mandate, while adding that a similar mandate may not be appropriate for all states. Dr. Deborah Birx, who helps coordinate the federal coronavirus response, described the mask mandate and bar closures as best practices for states like Louisiana with rising COVID-19 cases.

Alabama is the most recent state to issue a mask mandate. More than 20 other states have done the same, though some limit the orders to certain counties. Edwards’ order allows parishes with low levels of COVID-19 to opt out.

After some initial controversy, public health experts now agree masks are one of the most effective ways to control the spread of the disease. While the mask may not protect the wearer, it makes it less likely that the wearer, who may be carrying the coronavirus without knowing it, will infect others, experts say.

Bars are considered hot spots for community spread of COVID-19 in the United States and internationally. The Louisiana Department of Health has traced 36 outbreaks (more than any other type of business) and 429 cases (second-most behind food processing plants) to bars, officials say.

But LDH’s assessment is based on reports from contact tracers, which Landry describes as “hearsay.” While the governor may have authority to close individual bars where outbreaks have occurred, he has no authority to close an entire class of businesses without “far more data” to support the move, Landry says.

“In summary, the three provisions of the executive order – the mask mandate, the 50-person indoor/outdoor gathering limit, and the bar closure – are likely unconstitutional and unenforceable,” Landry says. “Although the mask mandate and the 50-person limit may be good recommendations for personal safety, they may not be enforced with financial or criminal penalties.”

Landry has tested positive for the coronavirus. He has issued a face covering mandate for Louisiana Department of Justice buildings, and he says he’s not trying to “discredit or reduce the significance of any protections taken by an individual,” including wearing masks.

During his radio show, Edwards urged residents to follow the mitigation methods spelled out in his executive orders, regardless of how they feel about the legalities involved.

“We clearly have a COVID-19 problem in Louisiana and I will not let our state go back to a time when we risked being able to provide health care for our people, which also would put our economy in peril, despite what the attorney general may want,” Edwards says.

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