Tag Archives: #Kentucky

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The General Assembly overrides Governor Beshear’s vetoes, so he goes to court to try to override the legislature

In mid-January, I submitted an OpEd to the Lexington Herald-Leader, one which the editors chose not to print suggesting that Governor Andy Beshear ought to sign Senate Bill 1, which the General Assembly passed, and which the Governor threatened to veto. In it, I wrote:

In the political dispute between Governor Andy Beshear (D-KY) and the Republican majority in the General Assembly, the legislature has taken up, and approved, bills to restrict the emergency powers of the Governor under KRS 39A. The Governor’s declaration of an emergency, and the executive orders which followed, were initially generally approved, as the extent and severity of the COVID-19 pandemic was both worrisome, and unknown.

However, the public were told, and sold on, the notion that this was a problem that could be greatly reduced by fourteen days of action. Dr. Ezekiel J. Emanuel, writing in The New York Times, said:

Health experts have not been overreacting. Models from Imperial College London and others suggest that up to 2.2 million Americans could die within a year without sufficient efforts to “flatten the curve.”

At the same time, it is right to worry about how Covid-19 will wreck the economy. Projections already suggest that the American economy could contract by more than 15 percent in the second quarter and that the unemployment rate could surpass 20 percent.

But the economy cannot be fixed without solving the pandemic. Only after the virus is contained can we reopen restaurants, bars, gyms and stores; allow people to travel, attend conferences and visit museums; and persuade them to buy cars and houses.

The window to win this war is about seven to 14 days.

If the United States intervenes immediately on the scale that China did, our death toll could be under 100,000. Within three to four months we might be able to begin a return to more normal lives.

Published on March 23, 2020, three to four months would have been late June to late July. Despite actions taken by the vast majority of our nation’s governors, including Governor Beshear, Dr. Emanuel’s now-seemingly-rosy prediction fell flat on its face.

Kentucky State Police put notices on and recorded license plates of unoccupied cars at Maryville Baptist Church on Easter morning. April 12, 2020. Photo by
Scott Utterback, The Louisville Courier- Journal.

Governor Beshear’s actions became controversial fairly quickly. While the Governor first recommended that schools and churches close, of their own volition, on March 19th he made it an order. This included April 12th, which was Easter Sunday. When a few churches refused to be closed to in-person services on the holiest day of the Christian calendar, Kentucky State Police troopers recorded license plates and VIN numbers of worshipers in two church parking lots, an ugly scene which attracted nationwide attention.

Resistance started mounting in the Bluegrass State, and leaders of the General Assembly began asking the Governor to be included in his decision-taking, but Mr. Beshear declined. The Herald-Leader reported:

Beshear was asked at Friday’s (July 10, 2020) 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.

Under the state constitution, the Governor has the power to call the state legislature into a special session, but the General Assembly does not have the ability to call itself back into session. When the Kentucky Supreme Court prohibited all state lower courts from acting on suits to stop the Governor’s orders, in July, then finally ruled in November that his executive orders were legal, Republican leaders knew that it was only legislative action which could get them involved.

Republicans significantly increased their already large majorities in both chambers of the legislature, and several bills were pre-filed to limit the Governor’s power. Mr. Beshear promised to veto the bills even before they were passed, but the General Assembly passed them anyway, by large margins. The Governor has promised to challenge the bills’ legality in court if his vetoes are overridden.

Senate Bill 1 does not prevent the Governor from taking action during an emergency; what it does do is limit his executive orders to thirty days unless an extension is approved by the General Assembly. It further specifies that no emergency orders can suspend rights under the United States Constitution.

There is no reason the legislature cannot be consulted; the Governor simply chose not to do so, thus drawing lines in the sand and angering legislators. There may not be much that he can do to repair that fractured relationship, but signing Senate Bill 1, and agreeing to work with the General Assembly might be the best he could do.

If he vetoes it, his veto will be overridden anyway. The sensible thing to do is sign it.

Of course, the Governor did not sign Senate Bill 1, or any of the other legislation the General Assembly sent him, vetoing six bills, and allowing a seventh to become law without his signature. And, as predicted, the General Assembly overrode his vetoes:

GOP swiftly overrides Beshear vetoes. He immediately challenges COVID laws in court.

By Daniel Desrochers and Jack Brammer | February 2, 2021 | 5:56 PM EST | Updated February 2, 2021 | 6:50 PM

Kentucky Republicans asserted their control in Frankfort Tuesday, overwhelmingly voting to override vetoes issued by Democratic Gov. Andy Beshear of bills that limit his powers during the coronavirus pandemic and other emergencies.

The action by lawmakers upon returning to the Capitol after a three-week break set the stage for a court battle, which Beshear initiated immediately.

In announcing his lawsuit against House Bill 1, Senate Bill 1 and Senate Bill 2, Beshear accused lawmakers of surrendering to COVID-19.

“Today, the General Assembly attempted to surrender to COVID-19 and accept the casualties. As your governor, I cannot let this happen,” Beshear said. “I have filed this action to continue to fight for the protection of all Kentuckians.”

The action fulfilled a promise he made Monday to fight the laws in court, setting up another battle in which the judicial branch will determine whether Beshear has the power to place restrictions on gatherings and businesses to limit the spread of COVID-19.

The Governor’s lawsuit was filed in Franklin County Circuit Court; Franklin is the county in which the state capital of Frankfort is located. The Governor asked for:

a temporary restraining order, a temporary injunction and a permanent injunction against the Defendants, Robert W. Osborne, Speaker of the Kentucky House of Representatives, Bertram Robert Stivers, II, President of the Kentucky Senate, and Daniel J. Cameron, the Kentucky Attorney General.

The Governor is trying to run out the clock on COVID-19. Had he included the legislature in 2020, it might not have come down to this.

Regardless of the outcome of this filing, the loser will appeal to the state Court of Appeals, and then to the state Supreme Court. That isn’t a very good history:

On July 17th, the Kentucky Supreme Court halted all lower state court efforts to enjoin Governor Andy Beshear’s (D-KY) executive orders to fight COVID-19. Then, three weeks later, the Court set September 17th to hear oral arguments on those cases, which meant that Mr Beshear’s executive orders would continue in force, without any recourse to the state courts to challenge them, for two months before the state Supreme Court would even allow arguments against them.

Those oral arguments were heard, but it wasn’t until November 12th that the state Supreme Court issued its ruling. That’s 118 days, or 3½ months, that the state Supreme Court left the Governor’s orders in force without any actual legal ruling.

Sadly, when that court did rule, it ruled in favor of the Governor.

Under Senate Bill 1, Governor Beshear can still issue executive orders for up to thirty days, without the approval of the General Assembly to extend them, so the Governor’s latest executive order, extending the mandatory mask order until March 1st. The Governor cannot extend that order now, under Senate Bill 1, without the approval of the legislature. But if he gets his way on an injunction, he could extend the order, and, if we get the same 118 days from the state Supreme Court, that would take until June 27th before there was a ruling by the officially non-partisan but practically Democrat controlled state Supreme Court.

All of this could have been avoided if the Governor had included the General Assembly in his decisions, if he had not acted unilaterally and specifically chosen to ignore the legislature.

Translation: Governor Beshear believed that the legislature would not go along with his draconian decrees.

I will admit it: I have little faith that the state Supreme Court will uphold the legislature and the rights of Kentuckians.

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Governor Beshear vetoes bills limiting his power The General Assembly will override those vetoes on February 2nd

Governor Andy Beshear (D-KY) had promised all along that he was going to veto the bills limiting his ’emergency’ authority under KRS 39A; I wonder why it took him so long. Perhaps he thought that with the inauguration tomorrow dominating the news, people wouldn’t notice his vetoes?

Beshear vetoes five bills limiting his power. Republicans likely to override him.

By Daniel Desrochers | January 19, 2021 | 5:42 PM EST | Updated: 5:57 PM EST

Gov. Andy Beshear vetoed five pieces of legislation Tuesday that attempted to limit his executive powers, saying they would “significantly hamper the important steps” he has taken to slow the spread of COVID-19.

Beshear vetoed House Bill 1, Senate Bill 1, Senate Bill 2 and House Bill 5, all of which would shift power from the executive branch to the legislative branch when dealing with emergencies, such as the coronavirus pandemic. He also vetoed House Bill 2, which would give the Attorney General authority over enforcement of abortion laws.

“Issuing a veto is my constitutional obligation as governor,” Beshear said. “And it’s my job to issue those vetoes with veto statements when I don’t think something is constitutional, when I think something will harm Kentuckians.

Citing a poll conducted by a consortium of universities and medical schools, Beshear claimed an overwhelming majority of Kentuckians supported his previous orders calling on people to stay home and avoid gathering in groups, limiting restaurants to takeout and shutting down K-12 schools to in-person classes.

Governor Andy Beshear (D-KY)

Of course, in the only poll which matters, the one taken on election day, Kentuckians increased the Republicans’ majority in the state House of Representatives from 61-39 to 75-25, and in the state Senate from 28-10 to 30-8. Republican candidates had been campaigning on, among other things, reining in an out-of-control governor, and voters in the Bluegrass State bought that message.

As we’ve previously noted, Republicans hold not only veto proof majorities in both chambers of the General Assembly, but those margins are so substantial that the GOP could lose several Republican votes and still override the Governor’s vetoes.

Mr Beshear has said that, if his vetoes are overridden, he will challenge the laws in court. Authoritarians don’t like their authority challenged!

Beshear also vetoed Senate Bill 1, which, among other things, would call the legislature into session to approve emergency orders that last beyond 30 days. Had such a rule been in effect during (2020), Beshear said lawmakers would have been called into special session at least 10 times at a cost to taxpayers of more than $3 million.

Uhhh, no. What it would mean is that the legislature would have had the option of granting extensions for longer than thirty days at a pop. What the Governor really meant is that the legislature would not have approved all of his orders.

The General Assembly reconvenes on February 2nd, at which time the override votes are expected.

Perhaps, just perhaps, if the Governor had cooperated with the legislature last year, as they asked him to do, the General Assembly wouldn’t have passed the bills limiting his power now.

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Governor Beshear keeps playing politics with COVID-19

The minions of Governor Andy Beshear (D-KY) tweet stuff like this every day:[1]Only those tweets signed ^AB are from Mr Beshear personally.

As we’ve previously noted, the Governor has held off on issuing more executive orders while the General Assembly has been in session. My guess is that he is trying to make nice to the legislators, in the hope that they will not override his promised vetoes on legislation to curb his emergency authority under KRS 39A, but I’m not a mind reader.

The Governor announced 4,084 new cases of the virus, and 51 more COVID-19-related deaths, the third highest daily death total since the pandemic began.

We are suffering more casualties than in most wars we’ve ever fought. Let’s treat it like it.

Yet the Governor is not treating the virus as strongly as he did before the legislature began its session on January 5th. I wonder why (he says, sarcastically.)

Through its partnership with the state, Kroger will set up a series of “high-volume drive-thru vaccination centers” across different regions of Kentucky that, once they open the week of February 1st, will be accessible to anyone in the top three priority groups, including essential workers, anyone age 60 and older, and anyone over the age of 16 with certain health issues.

Beshear said he expects the partnership to radically expand the state’s ability to get doses of the vaccine out to residents quickly, especially as hundreds of thousands more people become eligible for their first dose in the coming weeks.

Governor Andy Beshear (D-KY)

For a Governor who used his power to shut down schools, ban large gatherings and even force churches to close, he won’t take that kind of action now. There are still two weeks before the Kroger “high-volume drive-thru vaccination centers” open, and while tier 1a and tier 1b vaccinations have begun, the vast majority of Kentuckians have not yet has their opportunities, and are not yet eligible. Yet most private and public schools are open for in-person instruction, and their sports teams are playing, with unmasked athletes very much not engaged in ‘social distancing.[2]Fayette County, which includes Lexington, the Commonwealth’s second largest system, is not yet open for in-person instruction, and will not until at least February 1st, but the Fayette County … Continue reading

As we previously noted, even when the Governor’s executive order closing all schools to in-person instruction was in force, because it was too dangerous to allow in classroom instruction despite plexiglass barriers, desks set further apart and mandatory mask-wearing, the Governor allowed the high school football playoffs to continue.

Under Senate Bill 1, which was passed and sent to the Governor, he retains his ’emergency’ power to do most of the things he has done; that power is simply limited to thirty days without the General Assembly approving an extension. That bill isn’t law yet, as the Governor has neither signed nor vetoed it yet, and he has six days, until January 21st, before he must take action or allow the bill to become law without his signature. If he vetoes it, the legislature would hold its veto override session on February 2nd, which means he could still issue an executive order which would extend until March 2nd before it either expired, or the legislature approved an extension.[3]If the bills are passed over his veto, the Governor has promised to challenge them in court.

What Governor Beshear has previously said and done, which he said was absolutely vital for the safety and well-being of Kentuckians, he isn’t doing anymore,[4]He did renew his mandatory mask order for thirty days, beginning on January 2nd, before the legislature opened its session. He could renew it before the legislature meets for a veto override vote. … Continue reading despite several recent records in test positivity and deaths. Has he decided that those so vital that they cost thousands upon thousands of people their jobs, and drove thousands of businesses out of business weren’t really that vital, or is he just playing politics with COVID-19?

References

References
↑1 Only those tweets signed ^AB are from Mr Beshear personally.
↑2 Fayette County, which includes Lexington, the Commonwealth’s second largest system, is not yet open for in-person instruction, and will not until at least February 1st, but the Fayette County schools athletic teams are playing.
↑3 If the bills are passed over his veto, the Governor has promised to challenge them in court.
↑4 He did renew his mandatory mask order for thirty days, beginning on January 2nd, before the legislature opened its session. He could renew it before the legislature meets for a veto override vote. And while it is not guaranteed, the mandatory mask order is the one which the legislature would be most likely to approve for an extension.
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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!

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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.

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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.
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Politically correct crime reporting

The Lexington Herald-Leader reported Tuesday on the 2020 homicide numbers in Kentucky’s second largest city, home of the University of Kentucky, and where I lived from August of 1971 through December of 1984. There were 34 homicides in the city in 2020, up from 30 in 2019, which was the previous record. With a guesstimated population of 323,152 in mid-2019, that puts the city’s murder rate at 10.53 per 100,000 population, far, far behind places like Philadelphia and Chicago. Lexington-Fayette County is the 60th largest city in the United States, larger than St Louis, Cincinnati and Pittsburgh.[1]Unlike some other larger cities, Lexington has no contiguous suburbs, in that the Lexington city and Fayette County governments merged in 1974.

Teens, disputes drove a Lexington homicide record. COVID-19 made cases hard to solve

By Jeremy Chisenhall | January 5, 2021 | 2:57 PM EST | Updated: 4:12 PM EST

Lexington Police Chief Lawrence Weathers, from the city website.

Many of Lexington’s record-breaking 2020 homicides were violent conclusions to arguments or other crimes involving male adults or teens.

There were 34 homicides in Lexington in 2020, a 13 percent increase from 2019, according to Lexington police data. The previous record was 30, set in 2019. The difficulty of identifying suspects in the middle of the COVID-19 pandemic made matters worse for police.

“Everybody’s wearing masks,” Lexington Police Chief Lawrence Weathers told the Herald-Leader. “That puts a little extra work on us, and we have to corroborate a little bit more on some of the things without having a full face.”

Well, Governor Andy Beshear (D-KY) did mandate that, so, how about that, even criminals are obeying the orders!

There’s a lot more at the original, which you can read at the embedded link.

Jeremy Chisenhall, the article author, included some graphics in which homicides were mapped by location, by time and day of the week, by the ages and sexes of the victims and suspects.

You know what’s missing? Any data or graphics on the race or ethnicity of the victims and suspects.

Now, I didn’t know if it was political correctness on the part of the Herald-Leader or Mr Chisenhall that omitted that information, or whether the Lexington Police Department failed to provide it, so I did the obvious thing: I went to the Police Department’s website. There I found a chart on homicide investigations, listing all 34 victims and the current dispositions of their cases, including named suspects, plus the ages of the victims and where they were killed. But it doesn’t disclose race or ethnicity.

The LPD certainly keeps that information, because in another chart, on the same page I found the homicide chart, is a three page .pdf file of assaults with firearms, which specifically states that it does not include homicides, in which the races, sexes and ages of the victims are specified.

I was able to dig a bit deeper. On the homicides page, the 25 named offenders were hyperlinked to their mugshots. Based on observation of mugshots and names, I counted 11 non-Hispanic black males, 2 non-Hispanic black females, 4 non-Hispanic white males, 1 non-Hispanic white female, 2 Hispanic white males, 1 black Hispanic white male, 2 unidentifiable suspects and 3 juveniles.

So, why did I have to manually count a number that the LPD provided much more easily available in shooting victims?

Why hide this stuff? The omission was so glaring that anyone could have noticed it, and Mr Chisenhall’s graphics made that even more obvious. Eventually, the city will have to report the numbers anyway. But we’re not supposed to talk about race, are we?

References

References
↑1 Unlike some other larger cities, Lexington has no contiguous suburbs, in that the Lexington city and Fayette County governments merged in 1974.
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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.
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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.
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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.
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Cross-posted on RedState.