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.
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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