- posted: Dec. 15, 2020
- J. Will Huber
- COVID-19
- executive orders, lockdown
On November 12, 2020, the Kentucky Supreme Court rendered a unanimous decision that upheld executive orders and regulations issued by Governor Andy Beshear in response to the COVID-19 pandemic, finding them a legitimate use of the governor’s executive authority that did not violate the Kentucky Constitution. However, the decision has prompted a legislative backlash that may lead to an attempted curtailment of the governor’s emergency powers.
Beshear, a Democrat, declared a state of emergency in Kentucky on March 6 because of the COVID-19 pandemic. Subsequently, he issued multiple executive orders directed at various businesses, schools and other facilities throughout the state. These orders restricted hours of operations, who could and could not be admitted to places of business and how many customers could be admitted or served.
Several businesses — including a restaurant, a day care center and an automotive racetrack — sued the governor, seeking injunctions against the restrictions under state administrative law. The Kentucky Attorney General intervened in the suit on the side of the businesses. In July, the Supreme Court ordered the executive orders and regulations to be stayed until the court heard the cases on the merits.
In its 103-page opinion, the court stated:
- The governor properly declared an emergency and validly invoked the emergency powers granted to him under Kentucky Revised Statute Chapter 39A.
- Chapter 39A does not violate the separation of powers provisions of the Kentucky Constitution.
- The governor was not required to address the COVID-19 emergency solely through the emergency regulations adopted under Chapter 13A.
- The executive orders and regulations issued by the governor did not violate the Kentucky Constitution’s provisions protecting the property rights of state residents.
Republicans were not happy. Senate Majority Leader Damon Thayer went on Twitter, calling the Democratic governor’s orders “arbitrary & capricious.” He further tweeted that the governor’s actions “have destroyed jobs, harmed economic recovery & increased mental illness.” Republican Agriculture Commissioner Ryan Quarles said that when “the General Assembly returns in January, I hope they move quickly to restore the balance of our constitutional order back to the people, where it rightly belongs.”
Will the majority Republican legislature amend Chapter 39A when the legislature reconvenes? Certainly, some Kentuckians feel that Governor’s executive orders are excessive and heavy-handed. However, as of the end of November, 2020, there were over 164,000 coronavirus cases and over 1,900 COVID-related deaths in Kentucky. Hopefully, politicians from both sides will make decisions that benefit the public health and welfare of all Kentuckians.
About Finney Law Firm, LLC
Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation. FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.
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