Cameron challenges legality of KY school mask mandate. Some in GOP call for defiance.
Kentucky Attorney General Daniel Cameron is asking the state Supreme Court to reject Gov. Andy Beshear’s K-12 universal mask mandate, calling the emergency order an “unlawful exercise of power.”
“The General Assembly could not have been any clearer: the governor cannot unilaterally issue executive orders under KRS Chapter 39A, including a mask mandate,” Cameron’s office said in the eight-page filing on Wednesday.
“Not only has the General Assembly given the governor crystal-clear instructions, but so has the Boone Circuit Court,” he said, citing a permanent injunction the lower court issued last month. Beshear asked the Supreme Court to stay the injunction but it was unanimously denied three weeks ago. Beshear appealed but the court has not ruled on his most recent motion.
Meanwhile, the state’s highest court is still deliberating legal challenges to new laws the General Assembly passed earlier this year to limit the governor’s executive authority. A Franklin Circuit Court judge issued a temporary injunction that stopped those laws, which the Boone Circuit Court ruling attempts to enforce, from being implemented. The high court has not yet made a final ruling in that case.
“The governor’s mask mandate makes it clear — at least in the governor’s mind — that he does not need a stay from this court because he can do whatever he wants no matter what our courts say,” Cameron’s office argued in its filing.
The challenge comes less than a day after the Democratic governor signed an executive order requiring universal masking in all child care, pre-Kindergarten and K-12 settings for at least 30 days. After recommending that K-12 districts enforce universal masking on their own as COVID-19 surges across Kentucky, and seeing the low rates of compliance — nearly two-thirds of school districts initially chose to leave masking optional — Beshear said he had to make the decision, himself.
“We are to the point where we cannot allow our kids to go into these buildings unprotected, unvaccinated and face this Delta variant,” he said Tuesday. “There is no other option. This is absolutely what we have to do.”
Some state Republicans began bucking at the new rule immediately, criticizing the governor for overstepping.
“Local school districts across the state have carefully considered mandatory face coverings and made decisions regarding their own policies,” House Speaker David Osborne said in a statement Monday morning. “The governor may not agree with their choices, but he must respect their authority. Instead, at the eleventh hour, he chose to politicize this issue and flout their decisions by issuing an executive order with extremely questionable legal standing.”
The General Assembly “spoke clearly and indisputably” during its 2020 regular legislative session, Osborne said, when lawmakers passed a series of bills limiting the governor’s power to enact emergency measures to slow the spread of COVID-19, including Senate Bill 1, Senate Bill 2 and House Bill 1.
“He’s not only playing politics, but also acting as the legislative, judicial, and executive branches of government in defiance of legislation and judicial orders,” Osborne added.
In February, the governor vetoed the Republican-backed bills, but the legislature overrode his vetoes. Beshear then filed a lawsuit to block the bills from taking effect and a judge ordered a temporary injunction, which was quickly countered by an appeal from Attorney General Daniel Cameron’s office. In early June, the Kentucky Supreme Court heard oral arguments in that case and another related one, but justices have yet to hand down a decision, so those laws have yet to take effect.
SB 1 would cap the governor’s ability to issue executive orders during a state of emergency to 30 days unless the General Assembly chose an extension. SB 2 would give legislative committees more control and oversight of emergency administrative regulations handed down by the governor. HB 1 would allow businesses, schools, nonprofits and churches to stay open if they meet COVID-19 guidelines set by either the federal Centers for Disease Control and Prevention or Kentucky’s executive branch, whichever is least restrictive.
Beshear’s latest executive order mandating masks in K-12 schools and child care settings applies for 30 days and leaves open the indefinite option of renewal.
Those laws, Osborne said Wednesday, “strengthened state law to better reflect the separation of powers called for in our state constitution and empowered school boards, local governments and other entities to take the actions they deem necessary in situations like this. Until the Supreme Court rules on the governor’s challenge to these measures, this issue remains unresolved.”
Senate President Robert Stivers also chimed in, questioning the legality of Beshear’s order and proclaiming support for Cameron’s filing.
“By issuing another blanket mandate concerning the use of masks in our educational and child care facilities, the governor is once again proclaiming to Kentuckians that he is above the law,” Stivers said Wednesday afternoon. “We fully support today’s action by Attorney General Cameron to uphold the integrity of the law.”
Other Republican lawmakers chided the governor for taking the decision away from local school boards and superintendents.
“Once again, a ‘one-size-fits-all approach’ is taken by this Gov & completely erodes local control decision making where local elected officials are listening to parents needs and wants while the Gov issues his ‘indoor mask mandate in schools,’” Sen. Max Wise, R-Campbellsville, tweeted Tuesday night.
Rep. Savannah Maddox, R-Dry Ridge, tweeted Wednesday morning a picture of a masked student working at a desk with the words, “NO masks in the classroom!”
Maddox has remained one of Beshear’s most vocal opponents during the pandemic, at times openly defying his executive orders, including the statewide mask mandate when it was in place. The Kentucky Democratic Party called on Maddox to resign in May after they claimed she was affiliated with a white supremacy group that hanged Beshear in effigy on the Capitol grounds. She refused and refuted the affiliation and has since said she plans to seek the Republican nomination for governor.
“Now is the time to stand, KY,” Maddox tweeted Wednesday. “From the onset of Beshear’s mandates, I have sought to lead from the front in defending your liberties. It’s time to remind big government bureaucrats and their would-be king that [we] will not abide. America, and our children, are worth fighting for!”
After Beshear’s Tuesday news conference, Sen. Whitney Westerfield, R-Crofton, tweeted, “Did anyone even speak at all to the psychological and educational harm to students wearing masks all day? I sure didn’t catch it if they did. So frustrating.”
Rep. Ken Upchurch, R-Monticello, tweeted, “Wonder what would happen if parents and students across KY told the governor to go pound sand?”
Agriculture Commissioner Ryan Quarles, who is considered a likely Republican candidate for governor, tweeted, “Mandating masks for 2-year-olds? This is why we should let our local leaders and parents vet these decisions.”
Amid the push back, Beshear released a short video Wednesday morning reaffirming, he said, that his decision to mandate masking was “absolutely necessary.”
“Our kids, they’re not a property. They’re not our means to have political arguments with one another,” the governor said. “I know it’s not fun, but sending unvaccinated children to sit in a full classroom in a poorly ventilated building is like sending them to a chicken pox party, except instead of chicken pox, it’s the third leading cause of death in America that you’re exposing them to.”
“It’s a fact that masks work,” he said.
Leaders of the House Democratic Caucus, including Minority Leader Joni Jenkins, were supportive of Beshear’s mandate. “If we want our children in school instead of learning online, and if we actually want to follow CDC guidelines as this year’s HB 1 calls for,” then a student and staff mask mandate is the “only appropriate step to take,” they said.
This story was originally published August 11, 2021 at 1:36 PM.
