Attorney general seeks to limit governor’s power

Published 8:25 am Saturday, June 6, 2020

Attorney General Daniel Cameron urged lawmakers to consider making changes to the law that gives a governor emergency powers.

During testimony before the General Assembly’s Interim Joint Judiciary Committee on Thursday, Cameron said the law passed in 1998, known as KRS Chapter 39A, mentioned many potential emergency situations.

“Even with this comprehensive list, I’m sure it was hard to imagine in 1998 an emergency that would create the unique set of circumstances that we find ourselves in today,” he said.

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Cameron told the panel, “Even in the context of a pandemic, state actions undertaken pursuant to emergency powers are subject to important limitations,” and cited the ruling by the U.S. 6th Circuit Court of Appeals which overturned a ban on in-person church services issued by the Beshear Administration.

“I would submit,” he said, “that even before the courts become involved, it is the duty of the elected General Assembly to see to it that executive power is not granted that may be applied arbitrarily or unreasonably.”

Cameron said his office heard from many Kentuckians over the restrictions and other actions taken during the pandemic, “from eviction concerns, to concerns about liberty and reopening the state.”

He says that suggests a need to establish oversight for these situations. “Consideration should be given by the General Assembly to create exceptions in KRS 39A to protect constitutional rights during a state of emergency.”

Lawmakers may also want to reconsider a part of the law, he said, “That suspends laws, ordinances and regulations that are inconsistent with any executive orders issued during a state of emergency. Such broad power does not give protection to specific laws and regulations that should not be suspended. Greater specificity as to what can and cannot be suspended and for how long may be helpful in providing a check on the scope of executive orders.”

Cameron said another option to consider is an appeals process for executive orders and regulations. “Especially for an emergency that has lasted as long as this one. Such a process could be similar to the existing regulatory approval process and would allow input from the public.”

He noted the General Assembly cannot call itself into session, “but that could be mitigated by new statutory language that requires the governor to call the General Assembly into session if an emergency declaration lasts beyond a specified number of days.”

Gov. Andy Beshear was not invited by the committee to send a representative to the meeting.