The Kentucky Supreme Court heard arguments Thursday over the legislature’s attempt to limit Gov. Andy Beshear’s emergency powers, a day before the governor scheduled coronavirus restrictions to expire.
The Republican-led legislature passed several laws undermining the Democratic governor’s emergency powers earlier this year—including a measure limiting executive orders to 30 days unless renewed by lawmakers and requiring him to seek approval from the attorney general in order to suspend statutes during states of emergency.
Amy Cubbage, Beshear’s general counsel, argued that since the Kentucky constitution makes the governor the “chief executive,” the governor’s emergency powers are protected.
“This case is about whether the General Assembly can give itself—and others, including the attorney general and local governments—veto control over the exercise of emergency powers that reside and remain with the governor,” Cubbage said.
The state Supreme Court ruled last year that Beshear has the power to respond to states of emergency largely unilaterally, without seeking approval for various orders and mandates from the legislature.
But after Republicans padded their majorities in the state legislature last year, GOP leaders made it a priority to try and strip Beshear’s powers during this year’s legislative session.
Beshear sued to try and block some of those measures:
Senate Bill 1, limiting the governor’s emergency orders to 30 days unless renewed by the legislature
Senate Bill 2, giving the legislature more oversight over the administrative regulation process
House Bill 1, allowing businesses to stay open during the pandemic as long as they follow federal—and not state—guidelines.
A lower court has temporarily blocked parts of those bills while the lawsuit continues through the system.
Republican Attorney General Daniel Cameron is defending the laws on behalf of the legislature, arguing the governor’s emergency powers aren’t enshrined in the state constitution and that lawmakers have authority to grant or take away powers.
Chad Meredith, Cameron’s solicitor general, argued there was no legal controversy in the case and that the governor was suing just because he didn’t like the new laws.
“The legislature can change the law. And that’s what they did. And now the governor has come before you and said ‘oh no, they can’t change the law. Once they give me this suspension power, it’s mine and you can’t take it away,’” Meredith said.
Justice Michelle Keller asked if Beshear’s loss of emergency powers would count as an injury the governor could sue over.
“Can the harm not be the loss of something a governor or anyone once had? Because, as you stated, the General Assembly has curtailed or limited his executive authority. And so he once, before this session, did not have to check in with the attorney general when he wanted to suspend statute, now he does,” Keller said.
After the hearing Beshear held a short press conference. He said if the governor’s office didn’t have emergency powers during the pandemic, “we’d be in big trouble.”
“You look back at different things this legislature has tried to do in the midst of this pandemic, and they would’ve not had the courage to step up and mandate masks, which we know from the experts was absolutely necessary. We would’ve looked like the Dakotas and not what we looked like in Kentucky,” Beshear said.
A ruling in the case will be issued in the coming months.
