Kentucky Governor’s Covid-19 Restrictions Debated in State’s Supreme Court

Kentucky Gov. Andy Beshear walks through the state’s Emergency Operations Center at the Boone National Guard Center in Frankfort, Ky., on May 3. (Ryan C. Hermens/Lexington Herald-Leader via AP)

FRANKFORT, Ky. (CN) — The constitutionality of Kentucky Governor Andy Beshear’s Covid-19-related executive orders was debated before the state’s Supreme Court on Thursday, as small businesses and the commonwealth alike urged the court to strike down the decrees as an overreach of authority.

The arguments came after a months-long legal battle that began with lawsuits in two counties and included preemptive action by Kentucky’s high court to prevent a circuit judge from staying enforcement of the orders.

Beshear, who has provided daily press conferences on the spread of Covid-19 in the commonwealth throughout the pandemic, eased restrictions on businesses in May but still faced scrutiny from business owners and political foes alike.

Lawsuits filed in the Circuit Courts of Boone and Scott Counties challenged Beshear’s capacity limits regarding restaurants, childcare centers, and other businesses, and judicial action in each case seemed set to overturn the governor’s restrictions.

Following an evidentiary hearing, Boone County Circuit Judge Richard Brueggemann ruled in favor of the Florence Speedway and other businesses that challenged Beshear and was set to grant an injunction.

Brueggemann determined that Beshear’s actions violated the separation of powers doctrine and were an overreach of authority, even in the face of the Covid-19 pandemic.

“The constitution and bill of rights must not be cut down to shield the population from a pathogen,” he said in his order. “Our natural rights, and the need for their protection, are no less important today than when our commonwealth was founded.” 

However, before Brueggemann’s order could be implemented, the Kentucky Supreme Court stepped in and granted Beshear’s request for a hearing before it. 

La Tasha Buckner, the governor’s chief of staff and general counsel, argued on behalf of Beshear Thursday and called his executive orders “quick, decisive action to help protect the state.”

Buckner reiterated on several occasions that more than 197,000 Americans have died from Covid-19 and told the justices that Beshear’s measures have saved Kentuckians’ lives and worked to slow the spread of the disease.

Deputy Chief Justice Lisabeth Hughes asked Buckner if Beshear had properly declared Covid-19 an emergency under Kentucky’s statutory law before he issued his orders, and the attorney provided a concise answer.

“Playing a game of semantics when public health is on the line is not necessary,” she said, adding that President Donald Trump’s declaration of a national emergency superseded any statutory requirement.

Justice Michelle Keller asked about expert testimony provided during the Boone County case, and whether all the restrictions were necessary and adequately tailored to serve their purpose.

Buckner admitted there are “imperfections” in some of the orders but told the court “lines have to be drawn” because Beshear has been forced to respond quickly to the evolution of Covid-19 and its spread across the country and commonwealth.

Attorney Chris Wiest argued on behalf of the Florence Speedway and other small businesses in Boone County. He told the court that public input and legislative analysis should have been used before the orders were passed by Beshear.

Wiest cited Martin Luther King Jr.’s “I Have a Dream” speech and called the Constitution a “shared inheritance” among all Americans, and said that Governor Beshear should have worked through the legislature to slow the spread of Covid-19.

Justice Keller admitted to Wiest that his clients undoubtedly suffered an injury but asked the attorney whether Beshear’s orders should be viewed through the lens of what the world now knows about Covid-19, or what was known at the time the majority of them were issued in April and May.

Wiest called the timing of his clients’ suit “meaningful” and said that while the “governor needed breathing room” at the onset of the pandemic, the legality of the orders must be viewed through a current lens.

Solicitor General Chad Meredith argued on behalf of the Commonwealth of Kentucky, and began his statement to the court by holding up the entirety of the orders passed by Beshear, which amounted to more than 800 pages of text.

“In the United States of America, the ends do not justify the means,” Meredith said. “Process matters.”

The attorney accused Beshear of predicting doomsday scenarios and threatening businesses and citizens with criminal punishment as a vehicle for continued passage of his executive orders.

“The commonwealth continues on, and the sky is not falling,” Meredith told the court.

“[The governor] unilaterally created his own legal code,” the attorney said, adding that Beshear now commands “an astonishing amount of power that no governor in the United States should have.”

Meredith told the justices he does not doubt the gravity of the Covid-19 pandemic but that the seriousness of the disease is precisely why the legislature must be involved in fighting its spread.

“Imperfections are not good enough,” he said.

Meredith echoed Wiest’s concerns about the longevity of Beshear’s response to the pandemic and decried the governor’s continued action to limit and control the private actions of Kentucky’s citizens.

“We don’t know what kind of say anyone is having with the governor’s executive orders,” he said. “How are citizens supposed to know what is expected of them?”

Buckner dispelled these concerns in her rebuttal and cited Beshear’s daily press conferences as an effective means of announcing new requirements and informing the public about their responsibilities.

Attorney General Daniel Cameron attended the arguments but did not speak before the court.

No timetable has been set for the court’s decision.

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