As we have frequently noted, Governor Andy Beshear (D-KY) has been trying to run out the clock with his ’emergency’ decrees under KRS 39A. The Kentucky state Supreme Court, on April 16^th, decided to hold a hearing on the disagreement between courts in Franklin and Scott counties over the Governor’s executive orders, and then set June 10^th, a date then eight weeks into the future, for a hearing.

On May 6^th, Governor Beshear announced that he would loosen the restrictions, but not eliminate them entirely, effective just before the Memorial Day weekend. Then, on May 14^th, the Governor announced that almost all restrictions would be lifted on Kentuckians, including the hated mask mandate, even for those who are not vaccinated against COVID-19. He had, the previous day, followed the Centers for Disease Control’s recommendations, and stated that “fully vaccinated” Kentuckians could dispense with face masks. We noted, on June 11^th, on that court finally heard those arguments.

Several lawsuits were filed in state courts last year to stop the Governor’s emergency decrees under KRS39A. On July 17, 2020, the state Supreme Court put a hold on all lower court orders against Mr Beshear’s orders and directed that “any lower court order, after entry, be immediately transferred to the clerk of the Supreme Court for consideration by the full court.” Three weeks later, the  Court set September 17, 2020, another five weeks later, to hear oral arguments by both sides.

The Court then waited for eight more weeks to issue its decision, until November 12, 2020, which upheld the Governor’s orders. The General Assembly, dominated by Republicans, passed several bills, over the Governor’s veto, to limit his ’emergency’ powers. Republicans ran against the Governor’s authoritarian dictates in 2020, and the voters rewarded the GOP with 14 additional seats in the state House of Representatives, and two additional seats in the state Senate. Clearly, the voters in the Commonwealth disagreed with the Governor’s actions.

Well, if you thought that the eight weeks the Justices delayed in issuing their ruling in 2020, you ain’t seen anything yet, because eight weeks since the oral arguments this year elapsed on Thursday, August 5^th. That was six days ago, but there has still been no ruling issued. As we noted on Tuesday, several school districts decided against going along with Mr Beshear’s request that they impose mask mandates, so the Governor waxed wroth and issued an order that all public and private schools must be fully masked.

Some KY Republicans call for defiance of K-12 mask mandate and question its legality

By Alex Acquisto | August 11, 2021 | 1:36 PM EDT

Less than a day after Gov. Andy Beshear signed an executive order mandating universal masking in all child care, pre-Kindergarten and K-12 settings, some state Republicans are bucking at the new rule, calling it an overreach.

“Local school districts across the state have carefully considered mandatory face coverings and made decisions regarding their own policies,” House Speaker David Osborne said in a statement Monday morning. “The governor may not agree with their choices, but he must respect their authority. Instead, at the eleventh hour, he chose to politicize this issue and flout their decisions by issuing an executive order with extremely questionable legal standing.”

The General Assembly “spoke clearly and indisputably” during its 2020 regular legislative session, Osborne said, when lawmakers passed a series of bills limiting the governor’s power to enact emergency measures to slow the spread of COVID-19, including Senate Bill 1, Senate Bill 2 and House Bill 1.

There’s more at the original. But one thing is clear: if the state Supreme Court had done its job and issued its rulings on the previous cases expeditiously, there would be far less of a legal problem with the Governor’s executive orders.

If Senate Bill 1 is judged constitutional, the Governor could still have issued his executive order, in exactly the form he did, but would require the consent of the state legislature to extend it beyond thirty days. The Governor’s own order states that “This Order is effective at 4 p.p. on August 10, 2021, for a period of thirty days, and is subject to renewal.” The only difference would be that the General Assembly would have to approve any extension.