Governor Andy Beshear (D-KY) is playing politics with COVID-19 cases again. On Wednesday, January 6^th, 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 4^th.^[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.

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 3^rd, 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 2^nd 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.

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.

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.
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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.
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Cross-posted on RedState.