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Started By
Message
re: Cantrell, Avegno and city health dept sued over New Orleans’ vaccination, mask mandates.
Posted on 2/1/22 at 7:02 am to The Hurricane
Posted on 2/1/22 at 7:02 am to The Hurricane
The biggest issue in my opinion is that La. R.S. 29:727 doesn’t allow for mayoral emergency orders to automatically expire after X number of days. In contrast, La. R.S. 29:724 (the analogous statute providing for the governor to issue emergency orders) does.
Not many people realize this.
Some might ask “what is the big deal? JBE just issued new executive orders right before his previous ones expired each time.” Sure. But here is a bigger issue with Latoya’s order…
She is still operating under her “emergency” proclamation from May 15, 2020. Here is the announcement from last month reimposing the restrictions:
If you look at the the May 15, 2020 Emergency Proclamation, the Mayor orders the Director of Health, Avegno, to promulgate “temporary” COVID-related regulations, which were to “have the effect” of a temporary emergency executive order issued by the mayor under La. R.S. 29:727. Most significantly though, the May 15, 2020 Proclamation also suspends Section 2-1000 of the City Code, which set forth the requirements for City departments to promulgate regulations (and even the rules governing the process for promulgating emergency regulations), as those requirements relate to COVID regulations. Notably, section 2-1000(j) sets forth the process for issuing emergency regulations, and those have to expire after 90 days (and can only be extended once thereafter for another 90-day period). Even that procedure was too big of a hinderance to Latoya and Avegno.
So in other words, the May 15, 2020 Proclamation (which is still in effect) has allowed Avegno to unilaterally issue “temporary” regulations outside of the required process for promulgating regulations (i.e. without notice and a public hearing or further vetting by the Council), and those regulations have “had the effect of an emergency order” under La. R.S. 29:727, which, as explained above, doesn’t automatically expire.
This “loophole” has basically given Latoya and Avegno unilateral and perpetual legislative power. It needs to end.
Not many people realize this.
Some might ask “what is the big deal? JBE just issued new executive orders right before his previous ones expired each time.” Sure. But here is a bigger issue with Latoya’s order…
She is still operating under her “emergency” proclamation from May 15, 2020. Here is the announcement from last month reimposing the restrictions:
quote:
As of January 26, 2022, the City of New Orleans has fully vaccinated more than 82% of all adults with the COVID-19 vaccine. However, only 66% of all New Orleanians have been fully vaccinated, and just 38.6% of the 5 to 17 year old population has been fully vaccinated. Furthermore, there are several census tracts in the City with vaccination rates below 50%. Additionally, the highly contagious Omicron variant of the coronavirus has resulted in large increases in cases and hospitalizations in a short period of time. Therefore, the New Orleans Health Department is placing further restrictions on certain activities pursuant to the Mayor’s emergency powers provided by La. R.S. 29:727(F) and the “Mayoral Proclamation to Further Promulgate Emergency Orders During the State of Emergency Due to COVID-19” filed on May 15, 2020. These restrictions will be effective as of February 1, 2022 at 6:00 A.M.
If you look at the the May 15, 2020 Emergency Proclamation, the Mayor orders the Director of Health, Avegno, to promulgate “temporary” COVID-related regulations, which were to “have the effect” of a temporary emergency executive order issued by the mayor under La. R.S. 29:727. Most significantly though, the May 15, 2020 Proclamation also suspends Section 2-1000 of the City Code, which set forth the requirements for City departments to promulgate regulations (and even the rules governing the process for promulgating emergency regulations), as those requirements relate to COVID regulations. Notably, section 2-1000(j) sets forth the process for issuing emergency regulations, and those have to expire after 90 days (and can only be extended once thereafter for another 90-day period). Even that procedure was too big of a hinderance to Latoya and Avegno.
So in other words, the May 15, 2020 Proclamation (which is still in effect) has allowed Avegno to unilaterally issue “temporary” regulations outside of the required process for promulgating regulations (i.e. without notice and a public hearing or further vetting by the Council), and those regulations have “had the effect of an emergency order” under La. R.S. 29:727, which, as explained above, doesn’t automatically expire.
This “loophole” has basically given Latoya and Avegno unilateral and perpetual legislative power. It needs to end.
This post was edited on 2/1/22 at 7:22 am
4
Posted on 2/1/22 at 7:05 am to brewhan davey
quote:
So in other words, the May 15, 2020 Proclamation (which is still in effect has allowed Avegno to unilaterally issue “temporary” regulations outside of the required process for promulgating regulations (i.e. without notice and a public hearing or further vetting by the Council), and those regulations have “had the effect of an emergency order” under La. R.S. 29:727, which, as explained above, doesn’t automatically expire.
This “loophole” has basically given Latoya and Avegno unilateral and perpetual legislative power. It needs to end.
This. It basically allows for the Mayor to be the King or in this case Queen of a city by merely deeming something an emergency.
Posted on 2/1/22 at 7:33 am to brewhan davey
quote:
The biggest issue in my opinion is that La. R.S. 29:727 doesn’t allow for mayoral emergency orders to automatically expire after X number of days. In contrast, La. R.S. 29:724 (the analogous statute providing for the governor to issue emergency orders) does
The problem with both of these is they are being bastardized to justify the power hungry executive branches circumventing legislative oversight. The intent of these RS were to allow the gov the ability to get aid to those that needed it in an emergency without legislative boondoggles. Like a Katrina level event.
It was never meant to allow a gov or mayor the ability to declare themself king
Posted on 2/1/22 at 7:36 am to STEVED00
Very true.
Of note, Article XII, § 11 of the constitution requires that the legislature “provide for orderly and temporary continuity of state government, in periods of emergency, until normal processes of government can be reestablished in accordance with the constitution and laws of the state.”
Arguably, La. R.S. 29:724 and 29:727 are instances in which the legislature has delegated legislative powers to the executive branch during times of emergency. But now, nearly two years into the pandemic, normal processes of government can be re-established and have been re-established everywhere else in the state. The Mayor’s “emergency powers” were not intended to be perpetual.
Of note, Article XII, § 11 of the constitution requires that the legislature “provide for orderly and temporary continuity of state government, in periods of emergency, until normal processes of government can be reestablished in accordance with the constitution and laws of the state.”
Arguably, La. R.S. 29:724 and 29:727 are instances in which the legislature has delegated legislative powers to the executive branch during times of emergency. But now, nearly two years into the pandemic, normal processes of government can be re-established and have been re-established everywhere else in the state. The Mayor’s “emergency powers” were not intended to be perpetual.
Posted on 2/1/22 at 7:38 am to elprez00
quote:
The intent of these RS were to allow the gov the ability to get aid to those that needed it in an emergency without legislative boondoggles. Like a Katrina level event. It was never meant to allow a gov or mayor the ability to declare themself king
You’re exactly right. The recent use of these statutes as sources of unilateral lawmaking power has watered down the significance of the term “emergency.”
Posted on 2/1/22 at 7:43 am to brewhan davey
quote:
You’re exactly right. The recent use of these statutes as sources of unilateral lawmaking power has watered down the significance of the term “emergency.”
Even though the cases “skyrocketed” with Omicron. The hospitalizations did not even come close to being at a critical level except for maybe ERs being over run with people with cold symptoms trying to get “tested”. That emergency was even self inflicted bc LDH in its infinite wisdom was “recommending” testing to return to work/school.
Everything continued as normal everywhere else in the state except Nola. Even though Nola had much stricter requirements, they were affected exactly the same way.
This post was edited on 2/1/22 at 7:45 am
Posted on 2/1/22 at 8:14 am to The Hurricane
Cantrell will not be bullied and will tell the court to frick off. She has unlimited power, and the restrictions just got doubled as retaliation for the dissent and disrespect these ungrateful peons show her by having the audacity to sue Her Highness
Posted on 2/1/22 at 8:23 am to The Hurricane
quote:
Cantrell, Avegno and city health dept sued over New Orleans’ vaccination, mask mandates.
Bury them
Posted on 2/1/22 at 8:24 am to deltaland
quote:
Cantrell will not be bullied and will tell the court to frick off. She has unlimited power, and the restrictions just got doubled as retaliation for the dissent and disrespect these ungrateful peons show her by having the audacity to sue Her Highness
I agree however I’m sure AG Landry is chomping at the bit for some legal ability to come after Cantrell. I guess we will see.
Posted on 2/1/22 at 8:27 am to brewhan davey
quote:
The recent use of these statutes as sources of unilateral lawmaking power has watered down the significance of the term “emergency.”
Executive mandates are wholesale unconstitutional in my opinion.
You do not sacrifice liberty for security vested in executive powers. You cannot.
Mandates and laws are the territory of the legislature. The executive branch’s job is to enforce the laws of the legislation. When the executive branch supersedes and subverts the legislature we have entered unconstitutional authoritarian territory and it should have major protest and pushback.
The massive societal acceptance of executive expansion and overreach since 9/11 is terrifying and it is going to get worse until we as a society say enough is enough
This post was edited on 2/1/22 at 8:29 am
Posted on 2/1/22 at 8:29 am to STEVED00
I think the focus should be more-so on the separation of powers issue, on the grounds that the orders are legislative in nature and are imposed unilaterally and unchecked, which is why the courts need to step in.
This post was edited on 2/1/22 at 8:31 am
Posted on 2/1/22 at 8:30 am to PhillyTiger90
quote:
This suit is doomed before it begins
Giarusso is the only Judge over there currently that might even listen.
The rest of the bench in Orleans CDC is ummmm...
Posted on 2/1/22 at 8:56 am to Fun Bunch
quote:
Giarusso is the only Judge over there currently that might even listen. The rest of the bench in Orleans CDC is ummmm...
I don’t think this really matters. If they rule in favor of Teedy/Avegno then it still allows it to move up the chain is my understanding.
Posted on 2/1/22 at 8:58 am to STEVED00
You think the 4th Circuit of LA is any better? Just as liberal if not more so than the CDC bench.
It'll have to get to the Supremes.
Giarusso is honestly the best hope before the SpCrt of LA.
It'll have to get to the Supremes.
Giarusso is honestly the best hope before the SpCrt of LA.
Posted on 2/1/22 at 8:59 am to Fun Bunch
quote:
It'll have to get to the Supremes.
La Supreme Court, yes I would agree. I think that is the plan.
Posted on 2/1/22 at 9:17 am to Nguyener
quote:
quote:
The recent use of these statutes as sources of unilateral lawmaking power has watered down the significance of the term “emergency.”
Executive mandates are wholesale unconstitutional in my opinion.
You do not sacrifice liberty for security vested in executive powers. You cannot.
The City Council is 7 people. You could convene them in an hour to vote on pretty much any “emergency” declaration necessary.
Posted on 2/1/22 at 9:21 am to Y.A. Tittle
quote:
The City Council is 7 people. You could convene them in an hour to vote on pretty much any “emergency” declaration necessary.
While that may be true, there is a process for rulemaking outlined in the City Code. Cantrell's May 15, 2020 "emergency" proclamation suspended that process relative to COVID-related regulations. So that has allowed her to shoehorn in unending restrictions without the usual requirements of notice and public hearing, which would allow for members of the public to comment prior to the regulation being passed by way of a Council resolution. Put differently, the public has been frozen out of the process.
This post was edited on 2/1/22 at 9:22 am
Posted on 2/1/22 at 9:26 am to brewhan davey
Oh, I understand. I'm arguing against even the philosophical need for such "emergency" power in all but the most extreme instances.
Posted on 2/1/22 at 9:31 am to Y.A. Tittle
quote:
Oh, I understand. I'm arguing against even the philosophical need for such "emergency" power in all but the most extreme instances.
I got you. As someone else mentioned, the statute that vests the governor and the mayor with their emergency powers was intended to address emergencies created by natural disasters or terrorist threats. Those statutes fall under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, which was arguably enacted to delegate temporary legislative power to the executive branch during times of "emergency" or "disaster" until normal processes of government could be returned, in accordance with Article XII, Section 11 of the Louisiana constitution.
The Louisiana Homeland Security and Emergency Assistance and Disaster Act defines "emergency" as:
"(a) The actual or threatened condition which has been or may be created by a disaster; or
(b)(i) Any natural or man-made event which results in an interruption in the delivery of utility services to any consumer of such services and which affects the safety, health, or welfare of a Louisiana resident; or
(ii) Any instance in which a utility’s property is damaged and such damage creates a dangerous condition to the public.
(iii) Any national or state emergency, including acts of terrorism or a congressional authorization or presidential declaration pursuant to the War Powers Resolution."
And it defines "disaster" as:
"The result of a natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related events, forest and marsh fires, and man-made disasters, including but not limited to nuclear power plant incidents, hazardous materials incidents, oil spills, explosion, civil disturbances, public calamity, acts of terrorism, hostile military action, and other events related thereto."
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