Kentucky gov suffers legal defeat in combating COVID surge

FRANKFORT, Ky. — The Kentucky governor’s efforts to aggressively combat COVID-19 suffered a legal defeat Saturday as the state’s high court cleared the way for new laws to rein in his emergency powers.

In a landmark separation-of-powers case, the Kentucky Supreme Court said the legislature wields policy-making authority to limit the emergency powers granted to the governor by state law.

The ruling ordered a lower court to dissolve an injunction that for months had blocked the Republican-backed laws from curbing Democratic Gov. Andy Beshear’s executive authority.

The order could dramatically alter the state’s response to the pandemic at a time when virus cases and hospitalizations have surged because of the highly contagious delta variant.

The governor’s office quickly warned of the impact. The Supreme Court order will dissolve Kentucky’s pandemic-related state of emergency, Beshear spokesperson Crystal Staley said Saturday. The next step is to determine whether lawmakers are willing to extend the state of emergency in a potential special session, she said.

“The governor has had the courage to make unpopular decisions in order to keep Kentuckians safe,” Staley said in a statement. “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.”

According to the most recent statistics reported by Johns Hopkins University researchers, Kentucky has seen 7,517 COVID-19 related deaths to date, the 27th-highest death rate in the nation and the 30th-highest per capita. The overall rate was lower than some of its neighboring states.

Top GOP legislative leaders hailed the ruling for recognizing the legislature’s “constitutional authority to enact laws.” In a joint statement, House Speaker David Osborne and Senate President Robert Stivers said lawmakers “stand ready to work with the governor, as we have for nearly a year and a half, and address what is a very real public health crisis.”

Republican Attorney General Daniel Cameron, who defended the new laws, urged Beshear to consult with lawmakers to “find consensus on what is needed to protect Kentuckians.”

GOP lawmakers passed the new laws limiting the governor’s emergency powers in response to Beshear’s aggressive handling of the coronavirus crisis. The governor promptly sued to challenge the measures after his vetoes of the bills were overridden.

The Supreme Court weighed in with its rare Saturday ruling. The justices said “we do not question the governor’s good faith” in taking steps he believed were necessary to deal with the pandemic. But they said the governor’s claims that the measures impaired his ability to carry out his constitutional duties were “largely unsupported by sound legal principles.”

“In sum, considering that the challenged legislation was lawfully passed, the governor’s complaint does not present a substantial legal question that would necessitate staying the effectiveness of the legislation,” Justice Laurance B. VanMeter wrote.

The ruling sent the case back to Franklin Circuit Court with instructions to dissolve the injunction.

One of the contested laws limits the governor’s executive orders in times of emergency to 30 days unless extended by lawmakers. Under another measure, businesses and schools have to comply either with COVID-19 guidelines from the governor or the federal Centers for Disease Control and Prevention. They could follow whichever standard is least restrictive.

In a concurring opinion, Deputy Chief Justice Lisabeth T. Hughes said the 30-day limit on a governor’s emergency authority deserves legal review from the lower court when the case is returned.

“The 30-day limit 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 30 days, forcing the call of a special legislative session,” she wrote. “This type of special legislative session trigger has no antecedent in Kentucky law to my knowledge and requires careful constitutional analysis.”

Chief Justice John D. Minton Jr. joined in the concurring opinion.

Republican lawmakers said the new laws were meant to put checks on what they viewed as Beshear’s overreach in ordering the restrictions. The governor maintained the steps he took to limit activity during the pandemic have saved lives.

The governor lifted most of his restrictions in June. But with COVID-19 cases and hospitalizations rising, he recently signed an executive order imposing an indoor mask mandate in K-12 schools, child care and pre-kindergarten programs across Kentucky.

The governor’s spokeswoman pointed to the far-reaching impact of having Kentucky’s pandemic-related state of emergency dissolved.

“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,” Staley said. “It will further prevent the governor from taking additional steps such as a general mask mandate.”

Beshear withstood criticism and occasional protests over his pandemic-related actions. Armed protesters gathered near the governor’s home last year and then hanged Beshear in effigy in a tree near the state Capitol.

Last year, the state Supreme Court upheld the governor’s authority to issue coronavirus-related restrictions on businesses and individuals. The legislature responded by passing the new laws this year.

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