Legislators must limit scope of emergency executive power

Published 12:49 pm Thursday, July 16, 2020

Gov. Andy Beshear’s response to the numerous legal losses he’s suffered regarding his coronavirus-related executive orders is to go court-shopping.

After Court of Appeals Judge Glenn Acree refused to overturn rulings by circuit judges in Boone and Scott counties striking down the governor’s recent restrictions on crowds at automobile racetracks and agritourism businesses and class sizes at daycare centers, Beshear indicated their decisions don’t really matter.

“I haven’t gotten to choose any of these jurisdictions we’ve been in, but we are going to get this thing up to the Supreme Court,” he said before bypassing the full Court of Appeals and taking his case directly to the state’s highest court.

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Will Supreme Court justices approve of the blanket marginalizing of their black-robed colleagues on multiple circuit and appeals-court benches?

If so, will Chief Justice John Minton also announce a plan to get rid of all local courtrooms and bring every case of import directly to the Supreme Court?

When it comes to local courts, Beshear would seemingly prefer to keep just the Franklin Circuit Court doors open.

He filed a 48-page brief in that Frankfort court seeking to protect his mask order after Attorney General Daniel Cameron asked Scott Circuit Court Judge Brian Privett to review it in light of the judge’s earlier ruling requiring executive orders grabbing additional power meet certain criteria, including “the location of the emergency.”

Beshear will have trouble meeting that requirement, however, since he’s trying to force equal application of his orders to sparsely populated rural and mountain communities as well as to crowded nursing homes where it’s well-documented that COVID-19 is most devastating.

Legislative leaders in the General Assembly noted this sledgehammer-versus-scalpel approach in a recent letter to Beshear.

The governor’s actions “have unilaterally imposed arbitrary and overbroad orders that purport to address the spread of the novel coronavirus in the same way – whether in Paducah or Pikeville, or whether in Louisville or Harland,” wrote House Speaker David Osborne and Senate President Robert Stivers in a letter co-signed by Cameron.

Why doesn’t Beshear follow the approach taken by other governors who use data to target state-government’s effort to areas where cases clearly are spiking or the situation has worsened instead of forcing everyone to abide by the same suffocating mandates even if they’re in largely unaffected areas?

Kentucky simply cannot go on with one politician mandating the lives, lifestyles and livelihoods of an entire state and its 4.5 million citizens while threatening business owners statewide with another shutdown if they don’t obey and even enforce his orders.

The legislature can – and must – bring to bear the statewide perspective which occurs when the people’s representatives from every corner of the commonwealth reconvene in Frankfort in January.

Lawmakers must engage in a vigorous debate with the goal of defining what conditions constitute a “state of emergency” and developing more rational policies which allow the governor to act, but with limitations.

Legislators must reconfirm that the authority to create laws and establish permanent public policy belongs to legislators, not the chief executive.

Bills already filed in the House would limit the length of executive orders without legislative approval and require governors to call lawmakers back to Frankfort to debate future mandates stretching beyond temporary timelines.

Such legislation would also address the current governor’s constant slogan-sloshing about being “better together” and how this is “team Kentucky” while issuing orders without so much as a whisper of collaboration with the House Speaker, Senate President or attorney general, the state’s chief law enforcement officer.

This way, the legislature can indeed fulfill the goal of being “better together” by requiring the governor to work with – not rule aloof from – the people’s representatives.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.