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Kentucky’s high court reviews case testing executive powers

June 10, 2021 GMT

FRANKFORT, Ky (AP) — Kentucky’s highest court heard clashing views Thursday on the scope of executive powers as it reviewed Republican-backed laws that were meant to limit the Democratic governor’s authority to respond to the COVID-19 pandemic.

The nearly hourlong Supreme Court hearing came a day before all coronavirus-related capacity limits on Kentucky businesses are being lifted. But the case tests the balance of power between the state’s executive and legislative branches and will have far-reaching implications for future governors confronted by long-running public emergencies.

The constitutional showdown pits Gov. Andy Beshear against Republican Attorney General Daniel Cameron, who appealed a lower court ruling that temporarily blocked the new laws.

The case revolves around measures passed this year by the GOP-dominated legislature to curb the governor’s emergency powers in response to his handling of the coronavirus crisis.

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Beshear immediately filed a lawsuit after his vetoes of the bills were overridden. The new laws were temporarily blocked by Franklin County Circuit Judge Phillip Shepherd.

Amy Cubbage, Beshear’s general counsel, argued at Thursday’s hearing that the legislature was “micromanaging the pandemic and giving itself a veto” over his use of emergency powers.

State Solicitor General Chad Meredith, representing Cameron, said it was the legislature that established those gubernatorial powers in times of emergencies.

“They gave it; they can take it away,” Meredith told the high court.

Republican lawmakers said the challenged measures were meant to put checks on what they viewed as Beshear’s overreach in ordering a series of restrictions to combat the virus’s spread. The governor maintained the steps he took to limit activity during the pandemic have saved lives.

Kentucky has had more than 7,130 virus-related deaths.

One of the contested laws would limit the governor’s executive orders in times of emergency to 30 days unless extended by lawmakers. Under another measure, businesses and schools would have to comply either with COVID-19 guidelines from the governor or the federal Centers for Disease Control and Prevention. They could follow whichever standard is least restrictive.

Last year, the state Supreme Court upheld the governor’s authority to issue coronavirus-related restrictions on businesses and individuals to try to contain the spread of COVID-19.

Both lawyers on Thursday tried to gain an advantage from last year’s ruling. Meredith said the justices indicated that lawmakers had the authority to change the executive powers law.

“The General Assembly did exactly what this court said it could do,” he said.

Cubbage countered that the prior ruling recognized that the state’s response to an emergency is “inherently an executive function.”

Deputy Chief Justice Lisabeth T. Hughes noted the case’s far-reaching ramifications, saying it could apply to a future governor perhaps now in grade school who someday faces a public emergency.

“We’re looking at an apparatus to deal with emergencies that applies now, in the future and that every single governor ever since it’s been in existence has used,” she said.

Cameron, in a statement after the hearing, said the governor challenged the new laws “simply because he did not like them.”

“The General Assembly is a separate, co-equal branch of government and legislators must be able to make changes to state law and alter the governor’s authority without the threat of lawsuits that have no cause or validity,” Cameron said.

Beshear told reporters his use of emergency powers had spared Kentucky from the extreme hardships other states endured from what he called “our generation’s plague.”

“It would have been irresponsible for a governor not to have the authority to take the actions that were taken here,” he said. “And it’s critical that governors in the future have this power, too.”

The Supreme Court also heard arguments Thursday in a second pandemic-related case.

In that Scott County case, Circuit Judge Brian Privett temporarily blocked applying some pandemic-related restrictions to several restaurants and breweries challenging the governor’s actions. The state Court of Appeals stayed Privett’s temporary injunction.

Much of that case becomes moot Friday when virus-related restrictions are lifted, Cubbage said. But she asked the justices to invalidate the judge’s order because the plaintiffs challenged the governor’s overarching emergency declaration issued at the outset of the public health crisis.

“That emergency declaration needs to stay in place for much of the federal funding that we are getting as well as to enable the continuing vaccine effort,” Cubbage said.

Later in the day, Kentucky Senate President Pro Tem David Givens said the governor should end the pandemic-related state of emergency.

“We cannot continue to operate in a declared emergency and move this state forward the way it should move,” Givens, a Republican, said at a news conference.

Oliver Dunford, an attorney representing the businesses, said the continued state of emergency could lead to renewed restrictions if COVID-19 cases spiked again.

“My clients shouldn’t have to go back to court every time when we’ve already got the relief we asked for and the law clearly precludes him from doing so,” Dunford said.