Tag Archives: #AndyBeshear

Posted on by

The out-of-touch Lexington Herald-Leader doesn’t like it when the riff-raff express their opinions

It is with some amusement that I noted that the Editorial Board of what my, sadly late, best friend used to call the Lexington Herald-Liberal, in their complaints that Republicans in the Bluegrass State need to grow up:

Impeach Beshear? Seriously? In Frankfort and DC, Republicans need to act like grownups.

By Herald-Leader Editorial Board | January 22, 2021 | January 11, 2021 | 11:01 AM EST | Updated 11:11 AM EST

In the same week the U.S. Capitol was overrun by the domestic terrorists who make up Donald Trump’s base, Kentucky’s state legislature got to work. The “superdupermajority” of Republicans put all their energy and brain-power into making sure Gov. Andy Beshear was hampered in efforts to save us all from coronavirus, and then to put a cherry on it, announced they will set up a committee to impeach him.

So on one side of Frankfort is an earnest, serious politician, one who hasn’t gotten everything right but has tried hard to battle a pandemic the likes of which we haven’t seen since 1918. On the other side, we have some distinctly unserious people who are working hard on curbing said serious politicians, and, say, on how to hamstring the last two abortion clinics in the state while thousands of people get sick of COVID-19 and die.

If you want to know just how not serious these people are, they had to quickly amend their bill curbing the governor’s powers to close schools and businesses after Beshear himself reminded them that sometimes his rules were less stringent than the CDC.

Then to top off this tragicomedy of errors, House officials announced a panel to take up articles of impeachment against Beshear as a bunch of armed thugs circled the state Capitol. This is the same kind of militia movement that earlier this year hung an effigy of Beshear outside the governor’s mansion.

This must stop.

Senators Dennis Parrett, D-Elizabethtown, from left, Jared Carpenter, R-Berea, and Brandon Smith, R-Hazard, right, walk past demonstrators a protest at the State Capitol in Frankfort, Ky., Saturday, Jan. 9, 2021. Alex Slitz ASLITZ@HERALD-LEADER.COM

Armed thugs, huh? According to the dictionary, a thug is defined as “a violent person, especially a criminal.” Yet the article the Editorial Board linked bears no mention of any shots being fired. An accompanying photograph shows three state senators, one of whom was a Democrat, walking past the “armed thugs” without an apparent care in the world.

“The same kind of militia movement that earlier this year hung an effigy of Beshear outside the governor’s mansion”? Hanging the hated in effigy has a long history in America, as noted in The Hill:

Americans have a long history of citizens committing violence against president effigies to voice political dissent.

James Madison, John Tyler, Abraham Lincoln, Woodrow Wilson, Richard Nixon, Gerald Ford, and Jimmy Carter were all burned in effigy during their presidencies. And each time this happened, the offending party leaders repudiated the distasteful and disrespectful actions of their constituents.

President Obama was hanged in effigy, and Kathy Griffin posted a picture of her holding President Trump’s severed head.

The Editorial Board again:

But Republicans in Frankfort and Washington, D.C., who have played pattycake with these kinds of extremists for years, have got to stop this wing of the party from hijacking them literally, it seems, and on policy. They have got to become grown-ups and stop with these silly games that end in not so silly ways.

Did the hanging of Governor Beshear in effigy last spring end in violence? It seems that no one was harmed, other, perhaps, than the feelings of his supporters. Did the armed demonstration on January 9th result in injuries, damage or death? If it did, the Herald-Leader had nothing about that.

The Editorial Board appear to be like Twitter and The New York Times and others: they don’t like freedom of speech when it isn’t speech with which they agree.

In the article on the impeachment request, Herald-Leader reporter Daniel Desrochers noted that the petition was by four citizens, and that while there has been some talk about it in the legislature, “no sitting lawmaker has formally called for Beshear’s impeachment.” It would seem, then, that the Editorial Board is railing not against members of the General Assembly, but against a few citizens.

Of the four citizens who filed the petition, two aren’t even Republicans. Mr Desrochers noted that one of them, Jacob Clark, a 38-year-old machinist from Grayson County, is a Libertarian. Andrew Cooperrider of Lexington is also a Libertarian.

I would point out here the Editorial Board’s recent political endorsements:

  • 2020: Joe Biden for President, Amy McGrath for Senate, and Josh Hicks for 6th District Representative;
  • 2018: Amy McGrath for 6th District Representative
  • 2016: Hillary Clinton for President, Jim Gray for Senate, and Nancy Jo Kemper for 6th District Representative
  • 2014: Alison Lundergan Grimes for Senate, and Elisabeth Jensen for 6th District Representative

All Democrats, and all defeated in Kentucky and in the 6th District. It seems that the Herald-Leader Editorial Board isn’t exactly in tune with the voters of the Commonwealth.

Sadly, the editorial board did get their way in 2019, and Andy Beshear was elected. All he did was unconstitutionally suspend our First Amendment rights to the free exercise of religion and peaceable assembly, claiming that COVID-19 somehow trumped the Constitution of the United States, the same Constitution they are so vociferously defending when it comes to the election of Joe Biden. It’s almost as though there was some hypocrisy there!

Posted on by

The Kentucky General Assembly is trying to protect our rights But Andy Beshear will try to get around them

On Saturday, January 9th, the General Assembly passed legislation to curb the Governor’s ’emergency’ powers.

House Bill 1

Both chambers also passed through an amended version of House Bill 1, designed to allow any business, school, church or nonprofit to remain open so long as their COVID-19 policies meet or exceed the guidelines of the CDC.

The bill was amended in committee that morning following criticism from Gov. Andy Beshear in his Friday COVID-19 briefing, who pointed out that the myriad of guidance from the federal CDC is often vague and contradictory, if not more restrictive than the governor’s own regulations.

The newly amended HB 1 passed by both chambers and sent to Beshear now allows those entities to stay open if they meet either the CDC or executive branch guidance, whichever is least restrictive.

Sen. Ralph Alvarado, R-Winchester, said they bill would provide “stability and predictability” to businesses and schools dealing with Beshear’s orders. However, Sen. Reggie Thomas, D-Lexington, countered that Kentucky would become the “Wild West,” resembling other states with little COVID-19 regulations and far larger rates of cases, hospitalizations and deaths.

Senate Bills 1 and 2

Both chambers also passed through an amended version of Senate Bill 1 and Senate Bill 2, both tackling Beshear’s COVID-19 emergency orders and regulations that have been fiercely criticized by Republicans as an arbitrary abuse of power for months.

Senate Bill 1 limits the governor’s emergency orders under KRS 39A to 30 days unless extended by the General Assembly, in addition to requiring the attorney general’s permission to suspend a statute under an emergency.

Senate Bill 2 allows legislative committees to strike down a governor’s emergency administrative regulations.

Governor Andy Beshear (D-KY) has already promised to veto the bills, but Republicans have not just veto-proof majorities in both chambers of the state legislature, but very strong veto-proof majorities. It requires a “constitutional majority,” meaning an absolute majority of all seats in each chamber, to override a gubernatorial veto. That means 51 votes in the state House of Representatives and 20 votes in the state Senate. Republicans hold 75 seats and 30 seats in those chambers, respectively.

The Governor has promised to challenge the bills’ legality in court if his vetoes are overridden.

In the Bluegrass State, the Governor has ten days, exclusive of Sundays, to sign or veto a bill; if he does neither, it becomes law without his signature. This means Thursday, January 21th. The bills, if vetoed, would be reconsidered when tghe legislature reconvenes on February 2nd.

This leads to a couple of timing issues. The Governor issued his most recent thirty day mandatory mask order in late December, to take effect on January 2th. This means he could, and almost certainly will, issue it again prior to the General Assembly overriding his veto. Since the bills will not become law until after the vetoes are overridden, he could issue it for 120 days, or even the entire year, and could claim that it was not subject to the new laws.

Put bluntly, I do not trust Governor Beshear or the state Supreme Court to respect our rights.

More, the Kentucky Supreme Court is simply not trustworthy. Officially non-partisan, it nevertheless tends to support Democratic positions when they are at issue. Following lower court rulings which granted injunctions against some of the Governor’s executive orders, the state Supreme Court consolidated the cases, and in July declared that it would decide all of the issues, and prohibited lower state courts from taking action on those orders. The Court then set September 17th as the date it would hear oral arguments, meaning that the Governor’s orders would be unchallengeable in state courts for two months.

Then, after that two month delay, the Court waited until November 12th to issue their ruling, which upheld the Governor.

Senate Bill 1 provides that the Governor’s executive orders can last for only thirty days. If the vetoes are overridden, that would mean that an executive order issued on February 2nd would be good until March 4th. A state Supreme Court which favors the Governor could, in late February, issue an injunction against enforcing the laws until the Court decides their legality, schedule oral arguments a couple months later, and then issue their rulings a couple months after that. That could easily take us into summer!

And if every i and j isn’t properly dotted, every t properly crossed, the state Supreme Court would side with the Governor.

Posted on by

Andy Beshear plays politics with COVID-19 again

Governor Andy Beshear (D-KY) is playing politics with COVID-19 cases again. On Wednesday, January 6th, he told Kentuckians that the Bluegrass State had seen a record 5,742 new COVID-19 cases, with 34 fatalities.

Wednesday’s new case total is a head and shoulders above the state’s previous single-day record of 4,324 on Dec. 10. The all-time high comes a day after Beshear noted that the state’s day-to-day number of new cases were fluctuating, and his office was trying to figure out why. Tuesday’s new case tally, for instance, was 1,781 compared with Monday’s 2,319.

“Today’s numbers show how critically important a centralized effort and response is to defeating this virus,” Beshear said. The state has reported a total of 286,541 cases of the virus and 2,806 deaths.

Yet, despite the new record, Mr Beshear did not attempt to renew his school closing executive order, which expired January 4th.[1]The Governor had later recommended that schools stay closed until January 11th, but he did not make it an order. Danville Christian Academy, the lead plaintiff in Danville Christian Academy v … Continue reading

And Thursday was more of the same:

COVID-19 surging in Kentucky. 4,911 new cases & 37 deaths. Positivity rate nears 12%.

By Alex Aquisto | January 7, 2020 | 6:08 PM EST | Updated 7:06 PM EST

A day after Kentucky tallied a record number of new COVID-19 cases, Gov. Andy Beshear announced 4,911 more cases of the virus on Thursday, saying it signals a post-holiday spike.

“We are in a dangerous place,” Beshear said in an update.

Thursday’s new case total is the second-highest number the state has reported in a single day. On Wednesday, the state logged more than 5,700 new cases.

Beshear said it’s “now clear that we are seeing an escalation related to holiday gatherings. This is not the time to make it harder to react to this virus when it may be surging again.”

There’s more at the original, but, once again, the Governor is playing politics, urging the General Assembly not to limit his emergency powers. In it’s odd year, thirty-day session, the General Assembly, which the Governor explicitly cut out of the COVID-19 response because he knew the legislature would not approve all of his orders, is fast-tracking legislation which would limit the Governor’s executive orders under declared states of emergency, primarily limiting them to thirty days unless an extension is approved by the legislature.

House Bill 1 is the Republican legislature’s response to Beshear’s COVID-19 restrictions. Over the course of the pandemic Republican lawmakers have chafed at the capacity limitations and safety requirements Beshear has placed on businesses, schools and churches, with the latest round of outrage coming after Beshear closed restaurants and bars to in-person dining in the last weeks of November and ordered schools to switch to remote learning until January.

The Republican solution: businesses and schools can stay open as long as they “meet or exceed” guidance issued by the U.S. Centers for Disease Control and Prevention, detail their plan and post it on their door. Lawmakers have not specified which CDC guidelines must be followed, and the CDC’s page is built to offer tips on how to keep employees and customers safe more than to set standards for reopening.

The Kentucky Chamber of Commerce pushed a provision in the bill that would waive interest and penalties on employer’s unpaid unemployment insurance bills until 2022.

There also are provisions in the bill to allow family visitation for children in foster care during an emergency (the Beshear Administration prevented those visitations in November when cases were spiking, but they have resumed) and would allow residents of nursing homes to have one designated “essential personal care visitor” who would be exempt from any orders preventing visitation in nursing homes.

Senate Bill 1 would place a 30-day expiration date on any executive order from the governor that restricts the in-person meeting of schools, businesses and religious organizations unless the order is extended by the General Assembly. Local executives are given more flexibility under the bill for any emergency order they institute.

Should the governor hope to suspend a statute through executive order during an emergency the action would require approval from the Attorney General.

I have no doubt that if the General Assembly does not limit the Governor’s emergency powers, he would start issuing more orders as soon as the legislative session ended.

The bill also requires the governor’s office to give a report every 30 days about the contracts issued and revenues received while the state is under an emergency order. It attempts to prevent the governor from circumventing the legislature by issuing a new emergency order after 30 days on the same “or substantially similar” facts and circumstances of the original order.

The Governor’s pleas that “Today’s numbers show how critically important a centralized effort and response is to defeating this virus” and “This is not the time to make it harder to react to this virus when it may be surging again” make little sense, since the proposals would allow him to issue those executive orders, but would simply require that the state legislature approve any extension. But, despite the surging numbers, Mr Beshear once again declined to renew the expired executive order, because he knew that would just make the legislature even more likely to pass the bills limiting his authority. Republicans have veto-proof majorities in both legislative chambers.

The truth is simple: if the General Assembly does not pass the legislation restricting the Governor’s emergency powers, Mr Beshear would start using them the day the legislature adjourned. While the Governor can call a special session of the legislature whenever he wishes, to approve an executive order extension, the legislature does not have the authority to call itself back into session. Even if they did, the Republicans did not have a veto-proof majority in the state House of Representatives prior to the 2020 elections; now, they do.

References

References
↑1 The Governor had later recommended that schools stay closed until January 11th, but he did not make it an order. Danville Christian Academy, the lead plaintiff in Danville Christian Academy v Beshear, was open with in-person classes on Tuesday, January 5th. I personally verified this with a telephone call to the school.
Posted on by

Will the Kentucky General Assembly stand up for our rights?

As 2020 thankfully ends, for Kentuckians that means that the General Assembly will shortly be in session. Our state legislature is a part-time one, which is just the way the people in the Bluegrass State like it. Our state representatives and senators have other lives, and the pay for legislators does not allow them to be professionals at it. Legislators earn a salary of $188.22 per day, when the legislature is in session, along with a per diem expense allowance of $163.90. In even-numbered years, sessions may not last more than 60 legislative days, and cannot extend beyond April 15. In odd-numbered years, sessions may not last more than 30 legislative days, and cannot extend beyond March 30.

If you think, hey, that’s not much, until a constitutional amendment was passed by the voters in 2000, the legislature was restricted to meeting only once every two years.

We have previously mentioned Governor Andy Beshear’s (D-KY) dictatorial orders, and his refusal to involve the General Assembly.

Beshear was asked at Friday’s (July 10, 2020 — Editor) news conference on COVID-19 why he has not included the legislature in coming up with his orders. He said many state lawmakers refuse to wear masks and noted that 26 legislators in Mississippi have tested positive for the virus.

Though the Governor is supposedly very popular, and the public supposedly approve of his handling of COVID-19, the November elections increased Republican control over both chambers of the state legislature. The GOP increased their majority in the state Senate from 28-10 to 30-8, but, more importantly, in the state House of Representatives from 61-37 (with 2 vacancies) to 75-25. While the state Senate held a veto-proof Republican majority prior to the election, such was not the case in the state House; now, there is a veto-proof Republican majority in both chambers.

And so we come to this, from the Lexington Herald-Leader:

The legislature wants to curb Beshear’s executive powers. What does that look like?

By Daniel Desrochers | December 31, 2020 | 11:45 AM EST

After adding to their existing supermajorities in the Kentucky General Assembly in November, Republicans in Frankfort laid out a clear mission for the 2021 legislative session: scale back the executive powers of the governor of Kentucky.

“We’re going to refine,” said Senate President Robert Stivers, R-Manchester, days after the election. “There’s no doubt that chief executives of any state or at the federal level need types of powers in an emergency. We all agree with that. What’s the extent and duration? How do you apply [it]?”

Over the course of the COVID-19 pandemic, Republican lawmakers have chafed at executive orders passed by Gov. Andy Beshear aimed at stemming the spread of the coronavirus. Some have attended rallies against the orders, others have spoken out in favor of lawsuits challenging them, nearly all have said there hasn’t been enough communication between the governor’s office and legislators.

In particular, they’ve decried now-expired orders that temporarily banned all gatherings, including church services, and stopped private schools from holding in-person classes.

There’s more at the original.

Technically, Mr Desrochers, the article author, is incorrect: the executive order which prohibited private schools from holding in-person classes does not expire until Sunday, January 3rd, though, as the United States Supreme Court noted, the order would expire at the normal end of the Christmas break for schools.[1]In Danville Christian Academy v Beshear, the Supreme Court did just as I guessed it would: it let the case go moot. On November 18, the Governor of Kentucky issued a temporary school-closing Order … Continue reading

While I suggested that the Governor would renew his school closure order, but wait until January 2nd to do so, to give the private religious schools little time to appeal it, renewing that order would only anger the legislature. However, the Herald-Leader reported, yesterday, that “Kentucky has 7th-highest day for new COVID-19 cases. Positivity rate back above 9%.”

Wednesday’s tally of new cases is the seventh-highest single-day increase the state has reported since the beginning of the pandemic.

In a written update, Beshear noted the mid-week increase was “higher than it has been for a number of days,” adding, “The progress we have made is fragile.”

If the Governor concludes that he has no chance of avoiding the restriction of his emergency powers, he might well simply issue the edicts, hoping to get away with them for another month.

Six bills restricting the Governor’s emergency powers have been pre-filed in the General Assembly, but one commonality is that all require the calling of a special session of the General Assembly if the Governor issues an emergency decree which lasts for longer than a month.[2]Kentucky is one of only a few states in which the legislature cannot call itself back into session.

Mr Desrochers again:

Beshear has indicated he would like no approach at all. He has criticized the effort to restrict his ability to issue executive orders, painting it as a potentially “catastrophic” attempt to limit his ability to deal with COVID-19, and one that would hamstring future governors if another unforeseen emergency arrives.

“I hope when they show up, making a lot of noise, let’s take a breath, let me get on through this and afterwards, have at it,” Beshear told the Herald-Leader when asked about the legislature’s effort to limit executive power. “Then we can go to court or anything else.”

“Then we can go to court,” huh? The Governor is an attorney, and he knows that going to court costs time and money. If he issues another of his decrees, appeals of those decrees could take months by the time they work their way through the courts. The state court challenge to his decrees were consolidated by the state Supreme Court, last July, when the Court issued a stay of the lower court injunctions against the Governor’s decrees, and then the Court decided it would hear oral arguments two months later. The United States Supreme Court, when it finally dismissed Daniel Christian Schools v Beshear, did so based on the practical expiration of the challenged executive order, but that Court sat on the case for two weeks, taking it to less than a week before Christmas break began.[3]Justice Samuel Alito, in his dissent, noted: (I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November … Continue reading

But the General Assembly must do more than just time limit the Governor’s emergency powers. It must also make clear that those emergency powers do not and cannot infringe on our constitutional rights. We are guaranteed, under the First Amendment, the right of peaceable assembly and free exercise of religion, both rights on which the Governor’s executive orders have restricted. The state does not and cannot have the power to somehow just suspend our rights, and the state legislature must make that clear, in terms that our partisan state Supreme Court cannot choose to ignore.

COVID-19 is serious, but the violation of our constitutional rights, by Governors across the country, is far, far worse.
___________________________________
Cross-posted on RedState.

References

References
↑1 In Danville Christian Academy v Beshear, the Supreme Court did just as I guessed it would: it let the case go moot.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . .

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Uhhh, yes, there is! Governor Beshear has already ‘recommended’ that schools delay opening another week, until January 11th, and while he did not make that an order, quite possibly because he knew it would impact the case and it contradicted his own Court filing, he is now free to make it an order.

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

In other words, the Court would entertain a new case, should the Governor issue another executive order, but all of that takes time, and money. With Christmas break about to start, the Governor could easily wait until Saturday, January 2nd, to issue another executive order.

↑2 Kentucky is one of only a few states in which the legislature cannot call itself back into session.
↑3 Justice Samuel Alito, in his dissent, noted:

(I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

Justice Neil Gorsuch also dissented:

Nor should a Governor be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive. Come January 4, a new school semester will be about to start, and the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes. Rather than telling the parties to renew their fight in a month, asking the Sixth Circuit to resolve the case now, under accurate legal rules, would be better for everyone—from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not.

Courts have a broader equity at stake here too. In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion. In Kentucky, state troopers seeking to enforce gubernatorial orders even reprimanded and recorded the license plate numbers of worshippers who attended an Easter church service, some of whom were merely sitting in their cars listening to the service over a loudspeaker.

Recently, this Court made clear it would no longer tolerate such departures from the Constitution. We did so in a case where the challenged edict had arguably expired, explaining that our action remained appropriate given the Governor’s claim that he could revive his unconstitutional decree anytime. That was the proper course there, as I believe it is here. I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.
Posted on by

Rights delayed are rights denied — again!

As I noted in Rights delayed are rights denied, Governor Andy Beshear’s executive order closing all public and private Kindergarten through 12th grade schools had been expeditiously appealed, but the Supreme Court sat on the case. Now, in Danville Christian Academy v Beshear, the Court did just as I guessed it would: it let the case go moot.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . .

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Uhhh, yes, there is! Governor Beshear has already ‘recommended’ that schools delay opening another week, until January 11th, and while he did not make that an order, quite possibly because he knew it would impact the case and it contradicted his own Court filing, he is now free to make it an order.

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

In other words, the Court would entertain a new case, should the Governor issue another executive order, but all of that takes time, and money. With Christmas break about to start, the Governor could easily wait until Saturday, January 2nd, to issue another executive order. Since the Sixth Circuit’s order is the current precedent, a trial judge would have to deny another request for a stay, then it be appealed to the Sixth Circuit, which would almost certainly rule the same way, followed by an application to the Supreme Court, and how many weeks more would the free exercise of religion and freedom of assembly be denied to the people of the Bluegrass State?

In his dissent, Justice Samuel Alito noted that the delay was not the fault of the appellants:

(I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

Justice Neil Gorsuch also dissented:

Nor should a Governor be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive. Come January 4, a new school semester will be about to start, and the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes. Rather than telling the parties to renew their fight in a month, asking the Sixth Circuit to resolve the case now, under accurate legal rules, would be better for everyone—from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not.

Courts have a broader equity at stake here too. In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion. In Kentucky, state troopers seeking to enforce gubernatorial orders even reprimanded and recorded the license plate numbers of worshippers who attended an Easter church service, some of whom were merely sitting in their cars listening to the service over a loudspeaker.

Recently, this Court made clear it would no longer tolerate such departures from the Constitution. We did so in a case where the challenged edict had arguably expired, explaining that our action remained appropriate given the Governor’s claim that he could revive his unconstitutional decree anytime. That was the proper course there, as I believe it is here. I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.

For these reasons, I respectfully dissent. I would grant the application, vacate the Sixth Circuit’s stay, and remand the matter for further consideration under the proper legal standards.

As Justice Gorsuch noted, the Court could have vacated the Sixth Circuit’s stay, and then the expiration of the Governor’s order would have been forced to stay expired. If the Governor wanted to close religious schools again, he’d have to go at it differently.

I will admit it: I had higher hopes for Justices Thomas, Kavanaugh and Barrett on this case.

Of course, the vast majority of students in the Commonwealth attend the public schools, over which the Governor indisputably has authority. If the Governor wanted to close down the public schools, he could do so. Since it was only the religious private schools seeking relief, the Governor’s order would also apply to secular private schools.

As I wrote previously, I do not trust Governor Beshear: with the Supreme Court having dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear will once again enact executive orders restricting religious private schools. He has already indicated, as noted above, that he believes the schools should stay closed yet another week, and he could issue an order to that effect without any fear that the Supreme Court would invalidate it, because of the time factor.

I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.
_______________________________________
Cross-posted on RedState.

Posted on by

Some good news from the Supreme Court on Freedom of Religion But we still need more

I have frequently harped on written about Governor Andy Beshear’s (D-KY) attack on religious freedom by closing down private religiously affiliated schools, and noted that the Supreme Court has still not acted upon Danville Christian Academy’s appeal of the Sixth Circuit Court of Appeals upholding the Governor’s orders.

Danville Christian Academy’s case is facially different, because the Governor’s orders close down all schools, public and private, and are thus not treating the private or religious schools differently from the public ones, and that may be why the Supreme Court has not issued an injunction based on Catholic Diocese of Brooklyn v Cuomo.

However, there is some good news from the Court today, as documented by Amy Howe in SCOTUSblog:

Justices revive religious groups’ attempts to block COVID-related restrictions in Colorado, New Jersey

by Amy Howe | Tuesday, December 15, 2020 | 3:21 PM EST

The Supreme Court on Tuesday tossed out a pair of lower-court rulings that had permitted states to enforce COVID-related restrictions at worship services. The two brief orders from the justices instruct the lower courts to take another look at religious groups’ challenges to restrictions in Colorado and New Jersey – and this time, the justices indicated, the lower courts should decide the challenges in light of the Supreme Court’s Nov. 25 ruling that lifted New York’s COVID-related limits on attendance at worship services.

Tuesday’s orders are further evidence of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.

In the Colorado case, the justices threw out an Aug. 10 order by a federal district court that denied a request by High Plains Harvest Church, a small church in northern Colorado, to bar the state from enforcing capacity limits. Justice Elena Kagan dissented from Tuesday’s order, penning a brief opinion – joined by Justices Stephen Breyer and Sonia Sotomayor – in which she argued that the case was moot because Colorado has already lifted the limits at issue.

There’s much more detail at the original, but one thing is becoming increasingly clear: thanks to the replacement of Associate Justice Ruth Bader Ginsburg with Amy Coney Barrett, there is now a Supreme Court majority which strongly believes in freedom of religion, at least as far as activity in church is concerned. There may be less of that strong belief when it comes to religious schools.

Thanks to Amy Coney Barrett replacing Ruth Bader Ginsburg, we now have a Supreme Court majority that actually believe in the Freedom of Religion.

As an update to my article noting that the Court’s inaction on the Danville Christian Academy case, while Governor Beshaer’s response included the claim that his order was “a time-limited executive order that is set to expire in just four weeks,” January 4th, he has now “recommended” that in-person classes not be resumed until January 11th. With the case about to go moot — the Christmas holidays will be beginning in less than a week, and regularly scheduled classes wouldn’t resume until January 4th anyway — the Governor has not yet made it an executive order, so, presumably, it would not change his filing in the case.

But I do not trust Governor Beshear: if the Supreme Court dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear would once again enact executive orders restricting religious private schools. I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.

That is what the Republican leadership have promised. However, a Supreme Court decision that religious schools are also protected under the First Amendment would provide relief for religious schools across the nation, where action by the General Assembly would protect only Kentuckians.
_______________________________
Cross-posted on RedState.

Posted on by

Rights delayed are rights denied

We have thrice previously noted Governor Andy Beshear’s executive order closing all public and private Kindergarten through 12th grade schools, and Danville Christian Academy’s legal actions to enjoin enforcement of that order against private religious schools. While the private religious initially won, the Governor appealed to the Sixth Circuit, and the appellate court agreed with him, leaving the religious schools closed.

That was two weeks ago. An application for a stay was filed with Supreme Court Justice Brett Kavanaugh on Tuesday, December 1st, and several subsequent motions have been filed, but today is Monday, December 14th, and the private religious schools’ constitutional rights have been held in abeyance for two full weeks now.

Two weeks, during Advent, a highly important time of the year for Christians. Being December 14th, there’s only a week of school left this year before closure for the Christmas holidays. If the Supreme Court does not act, immediately, there will be no operative decision from the Court on whether the Governor’s orders have violated our First Amendment rights to freedom of peaceable assembly and free exercise of religion, because the Governor’s order expires before school would normally resume in January. However, there is nothing currently preventing Mr Beshear from extending his executive order past January 4th.

The Governor claimed that his order was “a time-limited executive order that is set to expire in just four weeks,” as though it is somehow permissible to suspend our constitutional rights for a limited period, though he continues just two sentences later to say that he could, “if necessary,” extend the order beyond the current January 4, 2021, expiration of the executive order. The appellants responded that, even now, Mr Beshear is attempting “to lift the injunction prohibiting him from closing Kentucky’s houses of worship,” so that he can order churches closed as well. We have previously noted that the Governor wants all churches to be closed down, but the four Catholic bishops in Kentucky have decided to continue public worship.

Our authoritarian Governor just hates to be defied, and he’s trying to get the injunction in Maryville Baptist Church, Inc. v Beshear lifted so that he can order churches closed, as he did last spring.

COVID-19 is serious, and has been fatal in a small percentage of cases, but the threat to our Constitution and our rights is far, far greater, and the Supreme Court needs to slap down such attempts.

As we have previously noted, Republicans hold veto-proof majorities in both chambers of the General Assembly, and GOP leaders have stated that they intend to rein in the Governor’s emergency powers under KRS 39A, but, while that would be welcome, and should happen to prevent future abuse, the Supreme Court needs to say, and set the precedent, that our explicitly stated constitutional rights cannot be simply set aside because the government, any government claims to have a good reason to do so.

Posted on by

More COVID-19 idiocy by Andy Beshear

Setting aside, for the moment, my many criticisms of Governor Andy Beshear’s (D-KY) executive orders on COVID-19, and using the Governor’s own reasoning that they are somehow so necessary that they supersede our Constitutional rights, just how does this make sense?

Beshear to KY superintendents: Prepare rosters of teachers willing to get vaccines.

By Valarie Honeycutt Spears | December 4, 2020 | 06:47 PM EST | Updated: 07:27 PM EST

Gov. Andy Beshear on Friday asked Kentucky’s superintendents to begin preparing rosters of school personnel who are willing to receive a COVID-19 vaccine, according to the state Education Department.

While Beshear is unsure when educators will begin receiving the vaccine, he asked superintendents to plan for the distribution of COVID-19 vaccines to the state’s education community.

Although the vaccines are distributed at the federal level, states direct where they need to go.

Beshear expects the Pfizer two-dose vaccine to become available by Dec. 15 and anticipates Kentucky receiving 38,000 doses in the first round of distribution. The initial doses will go to healthcare providers and nursing home residents and staff, but there won’t be enough to vaccinate all of them, according to the state.

Full disclosure: my wife is a registered nurse working in a hospital, and has had to take care of COVID patients. She is already scheduled for the first dose of the Pfizer vaccine in a couple of weeks.

Two weeks later, the state will receive the shipment of the Moderna vaccinations, which is twice as many as the first Pfizer delivery, Beshear said. After healthcare providers and residents and staff at long-term care facilities, Kentucky will prioritize emergency medical service workers and educators.

“That recognizes the exposure (to the virus) that educators have within the building,” Beshear said. “But it also recognizes the absolute, critical importance of what they do and how much better in-person classes are.”

Since the goal is to make schools as safe as possible, Beshear said all school staff who are willing to be vaccinated should be included on the rosters. Since it is unlikely that one shipment of vaccines will cover everyone within a school, districts should consider prioritizing those more likely to be exposured to the virus, Beshear said.

Why would we be prioritizing teachers, when the schools are closed? It would make more sense to prioritize people who work at Kroger!

One point hardly ever mentioned: testing the vaccines on children is just now beginning testing on children, and no vaccine has yet been approved for kids. One immunized teacher in a classroom full of unvaccinated children does virtually nothing to slow the spread of the virus, so Governor Beshear will still try to keep the schools closed.

The clinical trials conducted this year tested the vaccine’s safety and efficacy in adults, and researchers will need to conduct additional studies on how the vaccine affects younger children.

Researchers will need to examine the dosages, interval between doses, and the number of doses that work best in children.

This process could take several months, according to pediatric infectious disease experts. Kids might not see a vaccine until the summer or fall of 2021.

Translation: Using the Governor’s logic, it might not be safe to open the schools next fall!

Kentucky has the dubious honor of leading the nation in the percentage of children being reared by their grandparents rather than their parents, and the elderly are more susceptible to the virus, and more likely to become seriously ill or die from the virus than those who are younger. Thus, with unvaccinated children, if Governor Beshear allows the schools to reopen, you’ll see another surge in infections, and deaths, and if he doesn’t allow the schools to reopen, then there’s no need to prioritize teachers.

Posted on by

Fighting to the end * Updated! * The end has come Kentucky coffeeshop owner defies Andy Beshear's executive orders

I have previously noted the defiance of Andrew Cooperrider to the draconian orders of Governor Andy Beshear (D-KY) closing down all inside commercial dining for three weeks. The Lexington/Fayette County Health Department went to court to try to force Mr Cooperrider to close his coffee shop, after Mr Cooperrider refused to close his shop despite Health Department orders. The Health Department requested that the Lexington Police Department be allowed to enforce their orders.

Judge’s order to close hasn’t stopped a defiant Lexington coffee shop yet. Here’s why

By Jeremy Chisenhall | December 2, 2020 | 12:15 PM EST | Updated: 1:20 PM EST

The battle between a defiant Lexington coffee shop and the Lexington health department continued on Wednesday as the shop continued to serve — and got business from Lexington police officers in uniform.

Brewed, a coffee shop that opened in Lexington during the pandemic, defied Gov. Andy Beshear’s executive order to shut down indoor dining at restaurants and bars. Beshear said the order was issued in an effort to slow the spread of COVID-19 in Kentucky.

Brewed was ordered to close by a Fayette circuit judge Tuesday after a several-day battle of ignored closure orders from the Lexington-Fayette County Health Department and a lawsuit seeking an injunction.

But the judge’s order didn’t take effect until the health department paid a $5,000 bond. Once the bond has been paid, Brewed has to be served with the order. So Brewed wasn’t violating the judge’s order yet when it opened for business Wednesday morning.

Some snitched called the Lexington Police on Brewed, but the LPD, after discussions with the Health Department, determined that it was a civil rather than criminal manner, and could not take action. Mr Cooperrider responded by offering ‘first responders’ a 50% discount, and, according to WKYT-TV:

Judge (Thomas) Travis did not make a decision on whether or not police needed to enforce his ruling, and already Wednesday morning we’ve seen two uniformed Lexington Police officers get their coffee at Brewed, as well as a Fayette County Public Schools officer.

Of course, while the rank and file might support Mr Cooperrider’s right to remain open, the bosses might just be viewing that poorly:

“Lexington police expects all personnel to be aware of their actions, particularly while in uniform, and how those actions reflect on the department as a whole,” (LPD spokeswoman Brenna Angel) said. “Reports have been made that two officers were seen patronizing Brewed Wednesday morning. We will address this report with any officers involved.”

While I’d like to read a report stating that all 633 sworn officers and 150 civilian personnel went to patronize Brewed, I’m sure that won’t happen. Fayette County is one of only two counties carried by Joe Biden in the election, but he did so by a wide margin, 90,600 (59.25%) to 58,860 (38.50%), and the county voted 73,397 (65.51%) to 36,915 (32.95%) for Mr Beshear in the 2019 gubernatorial race, so one might guess that a significant number of LPD officers are Democrats. 🙁

It’s difficult to see how Mr Cooperrider wins this in the end, but he’s still alive and still fighting.
______________________________
Update: December 3, 2020:

Sadly, the end of Mr Cooperrider’s defiance has come. The Lexington Herald-Leader reported that “A Lexington coffee shop that has repeatedly and publicly defied health department instructions related to COVID-19 restrictions will now follow a judge’s order to cease food and beverage services.”

I did say that it would be difficult to see how Mr Cooperrider could win in the end.
______________________________
Cross-posted on RedState.