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 19^th he made it an order. This included April 12^th, 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 17^th, 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 17^th 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 12^th 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 1^st. 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 27^th 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.