Gov. Beshear’s emergency powers during COVID should be checked, attorney general says
Democratic Gov. Andy Beshear’s “unprecedented” use of executive authority during the COVID-19 emergency should be checked by the Republican-led state legislature, GOP Attorney General Daniel Cameron told state lawmakers Thursday.
When Beshear declared a state of emergency March 6 to address the novel coronavirus pandemic, his order covered all 120 counties and did not include an end date, Cameron said. Beshear quickly used that order to shutter businesses, close church services, ban travel outside the state and limit the power of Kentuckians to protest his actions at the state Capitol, Cameron said.
Cameron later joined lawsuits challenging Beshear’s ban on in-person church services, calling it a violation of Kentuckians’ right to religious expression. However, the U.S. Supreme Court ruled last month that governors are allowed to restrict attendance at religious services if the same restrictions are applied for health reasons on secular gatherings.
“I would submit that even before the courts become involved, it’s the duty of the elected General Assembly to see to it that executive power is not granted that may be applied arbitrarily or unreasonably,” Cameron told the legislature’s Interim Joint Committee on the Judiciary on Thursday.
“In Kentucky, we have seen firsthand the suspension of statues and regulations without the concurrence of the commonwealth’s lawmaking body,” Cameron said. “As one example, businesses were divided into ‘essential’ and ‘non-essential’ categories without their input and without due process. Many businesses were forced to close as a result, creating a surge in filings for unemployment benefits and leading the commonwealth to have the highest unemployment rate in the nation.”
A public comment period and appeals process would be another useful check on the governor’s executive orders, “especially for an emergency that has lasted as long as this one,” he said.
Cameron showed the committee a list of subjects on which he said his office has fielded hundreds of questions related to COVID-19 and Beshear’s orders, including the shutdown and reopening; “liberty concerns”; unemployment; masks; contact tracing; absentee voting; church services; and abortion.
“While the official COVID-19 website was a helpful tool for many Kentuckians to learn about the many actions taken during the emergency, there was often confusion concerning recommendations versus requirements,” he said. “As well, it was often unclear what enforcement, if any, would be a part of such orders. We feel that many questions in our office could have been cleared up with further public information.”
Nobody from the governor’s office was invited to speak to the committee.
During his press conference Thursday evening, Beshear denounced the recommendation, saying if Cameron “got his way” it could have resulted in significantly more COVID-19 deaths in Kentucky.
“It’s after we have blunted the curve and crushed the curve that politics comes back into it,” Beshear said. “But if a future governor did not have the power to take urgent action when needed, it would have resulted in significant additional death.”
Beshear said he “recognized how serious” his actions have been and that he recognized the economic damage some of the orders caused.
“But every action is for the life and the safety of Kentuckians,” Beshear said. “Now it’s about power and the legislature and the governor and the rest.”
Cameron’s concerns received a warm response from Republican lawmakers. They said the section of Kentucky’s statutes giving the governor broad emergency powers — Chapter 39A — needs a second look during the next legislative session this winter.
“I feel certain that Chapter 39A is going to get some attention come January,” said Senate Judiciary Chairman Whitney Westerfield, R-Crofton.
In Kentucky, state lawmakers only convene part-time, usually during the winter, which puts them at a disadvantage if they’re trying to monitor a full-time governor during an extended state of emergency, said state Sen. Stephen West, R-Paris.
It might help the legislative branch regain parity if the law was changed so that governors could have two weeks to four weeks of independent action after declaring a state of emergency, after which he either must call the legislature into session or else have his declaration voided, West said.
But Democratic lawmakers defended Beshear’s actions as necessary to protect the public during a deadly pandemic that so far has infected more than 10,000 Kentuckians and killed 450. It isn’t realistic to expect the governor, who already consults a team of public health experts, to regularly seek approval from the 138 members of the General Assembly while a crisis develops, they said.
“General Cameron, what would you have done if you were governor?” state Rep. Patti Minter, D-Bowling Green, asked Cameron.
“Well, I’m not governor, I’m attorney general,” Cameron replied. “My responsibility is to make sure we maintain the public safety interests, but also to look out for the constitutional rights of our citizens.”
When Beshear was the state’s attorney general, he regularly challenged then-Gov. Matt Bevin, a Republican, when he believed Bevin had over-stepped his legal authority, Cameron added.
“So I believe it’s well within the right of the attorney general, on behalf of Kentuckians, to look out for their constitutional rights,” Cameron said. “But I sympathize with the responsibilities of the executives in all our 50 states to keep our people safe.”
This story was originally published June 4, 2020 at 4:20 PM.
