FRANKFORT Kentucky’s Supreme Court heard arguments Thursday in a high-stakes case testing the legality of Gov. Andy Beshear’s orders to control the coronavirus outbreak by restricting public behavior.
During the hearing that lasted more than an hour, Beshear’s attorney said the Democratic governor’s actions complied with the law and saved lives from the ongoing COVID-19 threat. An attorney for Republican Attorney General Daniel Cameron countered that Beshear overstepped his constitutional authority.
At stake are a multitude of Beshear’s orders that include restricting the number of children in day cares and crowd sizes at public events. Also on the line could be the order requiring most people to wear masks in public. But even after the pandemic ends, the historic case figures to have long-term effects on the reach of a Kentucky governor’s executive power in times of crisis.
Beshear’s general counsel, La Tasha Buckner, called the legal challenge an “unprecedented” maneuver seeking to “gut the governor’s ability to take action in emergencies.”
“Their claims seek to wipe out the health requirements related to coronavirus while coronavirus is still ongoing,” she said.
The struggle to protect executive power marks a dramatic role reversal for Beshear, who as attorney general repeatedly challenged the authority of his predecessor, Republican Gov. Matt Bevin, to take action unilaterally. But Buckner, who is also Beshear’s chief of staff, argued that Beshear’s orders were justified by the dangers posed by the coronavirus.
Those actions — based on guidance from leading federal public health experts — were targeted at slowing the virus’s spread, she said.
“And while sadly we’ve lost over 1,000 Kentuckians to the virus, we know that these measures have worked,” Buckner said. “They helped lessen the impact across the state.”
State Solicitor General Chad Meredith, representing Cameron, countered that Beshear has “unilaterally created his own legal code” with his order.
“For going on seven months now, the governor has been issuing executive orders to control breathtaking aspects of the citizens’ private lives in Kentucky,” Meredith said.
“Over 800 pages of executive orders and memoranda,” he added. “And they keep coming. That’s incompatible with the rule of law in a republic.”
Meredith acknowledged the governor’s sincerity in trying to protect the public, but said that doesn’t justify his unconstitutional actions.
Beshear should instead follow another course to combat the virus — issuing administrative regulations that involve public input, he said.
The case originated in northern Kentucky, where a child-care center, an auto race track and a bakery challenged the governor’s COVID-19 orders. In July, the state Supreme Court stepped into the dispute by halting any lower court orders blocking Beshear’s actions pending its own review.
Christopher Wiest, a lawyer for the northern Kentucky businesses, said the governor has authority to enact “reasonable” public health restrictions to combat disease through administrative regulation. That action can be as emergency regulations taking effect immediately, he said, but he argued that Beshear instead took a course giving him “almost unchecked” power.
Buckner countered that the governor was following the authority given him by state law to take the executive actions. Beshear’s orders are similar to actions taken by other governors, she said.
A ruling against Beshear would have broader ramifications, restricting his and his successor’s ability to respond to other emergencies such as floods and ice storms, she said.
Speaking with reporters shortly after the hearing, Beshear denounced the legal challenge as “reckless and irresponsible,” threatening to weaken the state’s ability to fight the virus. At a briefing Wednesday, he said: “It’s pretty simple, if they win, more people are going to die.”
Cameron, who is seen as a rising GOP star, said afterward in a release that state laws don’t “allow for the broad, arbitrary, and long-term actions put in place by the governor since early March.”
“While some new policies and guidelines are needed to slow the spread of the disease and ensure Kentuckians adhere to recommended health guidelines, these policies must strike a necessary balance between public health and protecting the constitutional rights of Kentuckians,” he said.
The legal showdown drew a group of people to the state Capitol lawn to protest the governor’s orders. Few wore masks and some toted firearms, the Courier Journal reported. They had mostly dispersed by the end of the court hearing.
It’s not known how long it will take the Supreme Court to rule in the case.
During his term as attorney general, Beshear filed a series of lawsuits challenging some of Bevin’s executive actions, including the replacement of members of state boards and commissions. Beshear narrowly defeated Bevin in last year’s gubernatorial election.