Kentucky Supreme Court: New Laws Limiting Governor’s Emergency Powers Can Go Into Effect
Kentucky Supreme Court: New Laws Limiting Governor’s Emergency Powers Can Go Into Effect

By Zachary Stieber

Laws passed by the Kentucky legislature shouldn’t have been blocked from going into effect earlier this year, the state’s highest court ruled on Aug. 21.

A judge in March blocked three bills that were passed to curtail Gov. Andy Beshear’s executive powers, including a bill that let certain businesses remain open if ordered to close by the governor under certain conditions.

Franklin Circuit Court Judge Phillip Shepherd said in his ruling at the time that the legislature may have “crossed the line distinguishing prescribing policy, limitations and safeguards into micro-managing the executive’s implementation of the legislature’s grant of authority.”

The Kentucky Supreme Court, in its new decision, said Shepherd erred in blocking the bills from taking effect.

“We find that this matter presents a justiciable case or controversy but that the Franklin Circuit Court abused its discretion in issuing the temporary injunction. Accordingly, we remand this case to the trial court with instructions to dissolve the injunction,” Justice Laurance VanMeter wrote, representing the unanimous decision.

The Kentucky Supreme Court has two justices appointed by a Republican governor and one appointed by a Democrat. The other four won elections, which are nonpartisan.

VanMeter, who was elected, said that an earlier ruling in which justices agreed that the governor had the authority to issue emergency orders, which was cited by Shepherd, did express support for a statewide response to the COVID-19 pandemic, but that didn’t mean such a response was the only way to deal with the health crisis.

“In fact, we expressly held that the General Assembly could limit the Governor’s statutorily-derived emergency powers should it wish to,” he said.

The case dealt with three laws that were passed by the legislative chambers before being vetoed by Beshear, a Democrat in his first term. But Republicans, who hold supermajorities in both chambers, overrode the vetoes.

In a concurring opinion, Justice Lisabeth Hughes, an appointee of Republican Gov. Ernie Fletcher, said questions about emergency powers have yet to be fully argued and that similar cases could arise in the future since the pandemic isn’t over.

She said the 30-day limit on the exercise of the governor’s emergency authority “operates as a ‘kill switch’ that essentially transfers the day-to-day management of emergencies to the legislature by rendering the executive branch powerless to act after thirty days, forcing the call of a special legislative session.”

The justice wondered whether the provision was consistent with Kentucky constitutional framework.

Masked cafeteria workers serve food during a socially distanced lunch at Medora Elementary School in Louisville, Ky., on March 17, 2021. (Jon Cherry/Getty Images)

A spokesperson for Beshear said the order would dissolve Kentucky’s state of emergency for the pandemic.

“It either eliminates or puts at risk large amounts of funding, steps we have taken to increase our health care capacity, expanded meals for children and families, measures to fight COVID-19 in long-term care facilities, worker’s compensation for front-line workers who contract COVID-19 as well as the ability to fight price gouging. It will further prevent the governor from taking additional steps such as a general mask mandate,” she said in a statement to news outlets.

“The administration will work to determine whether the General Assembly would extend the state of emergency as we assess whether to call a special session. The Governor has had the courage to make unpopular decisions in order to keep Kentuckians safe—the court has removed much of his ability to do so moving forward. If called in to a special session, we hope the General Assembly would do the right thing.”

Kentucky Senate President Robert Stivers and House Speaker David Osborne, both Republicans, said in a joint statement that the ruling affirmed that the legislature “is the only body with the constitutional authority to enact laws.”

Kentucky Attorney General Daniel Cameron, a Republican who requested relief from the state’s top court, also cheered the ruling.

“For months, we have maintained that the Governor must work with the General Assembly during the COVID-19 crisis,” he said in a statement. “Today, the Supreme Court unanimously agreed with our position. This is not a novel concept; in fact, it’s the bedrock of our system of government.”

The Republicans urged the governor to work with them to address the pandemic.

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