Legislature overrides vetoes of three bills limiting governor's emergency powers; Beshear files lawsuit to nullify those new laws

The Kentucky House of Representatives (Courier Journal photo)

By Melissa Patrick
Kentucky Health News

The legislature's Republican supermajority flexed its muscle Tuesday and overrode Democratic Gov. Andy Beshear's vetoes of six bills, three of them designed to limit the emergency powers that he says he needs to thwart the coronavirus pandemic.

Beshear immediately filed a lawsuit in Franklin Circuit Court to nullify the three bills, saying in a news release that he did so to stop legislators from stripping him of his ability "to implement lifesaving public health measures during a pandemic that has killed more than 3,700 Kentuckians." 

“Today, the General Assembly attempted to surrender to Covid-19 and accept the casualties. As your governor, I cannot let this happen,” Beshear said. “I have filed this action to continue to fight for the protection of all Kentuckians.”

Republican lawmakers are looking to limit governor's powers at a time when the state is recovering from its third escalation of virus cases while suffering more deaths; working to ramp up vaccinations; and warning that new variants of the virus could cause huge spikes in cases by March. 

Beshear announced 2,443 new cases Tuesday, lowering the seven-day average to 2,352. This is the fifth straight day the share of Kentuckians testing positive for the virus in the past seven days is below 9 percent, at 8.83%. But Covid-19 deaths remain high, from the holiday-driven escalation of cases; 32 more brought the 14-day average to a near high, 44.14 per day.

Again, Beshear argued that Kentucky has fared better than other states under his orders, seeing fewer cases and significantly fewer deaths. 

He noted Kentucky's Covid-19 death rate by population is less than two-thirds that of Tennessee, who has no mask mandate, and said: “The lesson is clear: When a governor takes action, his or her state experiences fewer deaths. When a governor does not, the results are tragic.”

With very little debate and almost entirely along party lines, all three vetoed bills were repassed by both chambers. 

House Bill 1 allows businesses, schools, nonprofits and churches to stay open during the pandemic as long as they have a plan in place that meets the requirements of the least restrictive plan set forth by either the Centers for Disease Control and Prevention or the state administration. It repassed the House 72-22 and the Senate 29-8. 

In the House, the only speaker for the bill was Rep. Richard White, R-Morehead, who said, "I feel like us legislators are representing our constituents all across the parts of the state, and I think we should have a little voice or input in some things that's being said down here in the state."

Rep. Rachel Roberts, D-Newport, a small-business owner, said CDC guidelines are ever-changing and are meant to be used as guidelines, not as mandates. "I find this bill to be confusing," she said. "I find it to be reckless, and I think this bill will lead to more loss of life."

Rep. Buddy Wheatley, D-Covington, said of Beshear, "Let's not tie his hands. Let's let him continue this job. Let's let him be the governor and not diminish his powers like this." 

Senate Bill 1 limits to 30 days Beshear's executive orders that restrict the function of schools, businesses or nonprofits, unless they are extended by the General Assembly. It also applies to executive orders that regulate political, religious and social gatherings or impose mandatory quarantines or isolation requirements. It repassed the Senate 29-8 and the House 69-20. 

Senate Minority Leader Morgan McGarvey, D-Louisville, said the bill does nothing to help the people of Kentucky, which is what they were elected to do. 

"It handcuffs every future executive branch official, every future governor and how they organize what they do and how they respond to crisis when we're not here," he said. "This is a part-time legislature, it is a full-time executive. We should be shaping policies that help people now into the future. I don't think this bill does that and that's why I vote no." 

Sen. Stephen Meredith, R-Leitchfield, said he voted yes "on behalf of the tens of thousands of Kentuckians who are still waiting to get an [un]employment check; for the hundreds of small business owners who've given up their life savings, given up their life's work; the thousands of  children who have been denied a quality education. It's time to change." 

Sen. Matt Castlen, R-Owensboro, the primary sponsor of SB1, said, "To our small-business owners, our restaurants, our families at home teaching their children right now, balancing life and a job and all the other things, the past 333 days have been tough on this state. And we gladly look forward to having a seat at the table representing all corners of Kentucky."

In the House, Rep. McKenzie Cantrell, D-Louisville, asked if legislators now planned to do away with the emergency orders, noting that some of them may be tied to much-needed federal monies. "What is next?" she asked. "What is the plan?" 

The bill also strips the ability of the governor and the secretary of state to change the manner of holding an election during an emergency without approval of the legislature. 

The third pandemic-related bill is SB 2, which allows legislative committees to strike down a governor's emergency regulations. It also requires such regulations to include justification or evidence; limits the order to 30 days if it affects education, businesses, nonprofits, local governments or places of worship; and establishes rules to allow for expedited public hearings on the order.  It repassed the Senate 31-6  and the House 69-20. 

Sen. Stephen West, R-Paris, the primary sponsor, stressed that this bill allows the public to be able to comment on emergency orders, like the ones that he said stripped people of their jobs, didn't allow landlords to collect rent and restricted in-person worship. 

All three bills have an emergency clause that will make them effective immediately upon the secretary of state's signature.

Beshear announced Monday that leaders of the two chambers had just told him that they would not negotiate the issue until the override votes were taken.

House Speaker David Osborne, R-Prospect, told the Courier Journal that he wished the issue wasn't going to be litigated, but said Beshear "has shown no willingness to work with us and have these discussions so far, so we fully expected him to litigate this to keep his unilateral power intact."

As the Senate adjourned, Senate President Robert Stivers, R-Manchester, mimicking the promise made by the governor on Monday at his Covid-briefing, said, "I'll see you in court."

Beshear's argument against HB 1 says it is "void for vagueness and places absolute and arbitrary power in the federal government," and cites a letter from the CDC director saying the guidelines "should not be interpreted as regulation."

His argument against SB 1 repeatedly notes that Kentucky has a part-time legislature, notes that it would force a governor to call the legislature into special session to extend an order beyond 30 days and claims the measure "takes an executive power and function that properly belongs to the governor as the commander in chief and gives it to the legislative branch." It says SB 1 also violates the constitution by putting the governor "under the supervision and control of an inferior officer, the attorney general, by requiring the governor to obtain the inferior officer’s written approval before suspending a statute by executive order." Republican Daniel Cameron is attorney general.

The governor's argument against SB 2 says it violates the state constitution's separation of powers "by invading the executive power and function of the Cabinet for Health and Family Services – an executive-branch cabinet – to act to address and protect Kentuckians from infectious or contagious diseases . . . " He also argues that all the bills violate the constitution's ban on special legislation and don't meet its requirement to state at length the reasons for their emergency clauses.

In other coronavirus news Tuesday: 

• Today's fatalities were a Bourbon County man, 86; a Clay County woman, 51; a Crittenden County man, 97; two Daviess County women, 60 and 88; two Daviess County men, 72 and 77; a Fayette County woman, 81; two Fayette County men, 60 and 87; a Grayson County man, 62; a Hardin County woman, 76; three Hardin County men, 59, 67 and 73; a Henderson County man, 74; two Hopkins County women, 68 and 83; four Jefferson County women, 55, 70, 82 and 86; four Jefferson County men, 63, 63, 69 and 98; a Johnson County man, 79; a Kenton County woman, 78; a LaRue County woman, 69; a Marion County man, 56; an Ohio County woman, 71; and a Pulaski County woman, 90.
• Counties with 10 or more new cases were Jefferson, 349; Boone, 144; Fayette, 140; Kenton, 132; Madison, 81; Campbell, 78; Laurel and Warren, 77; Daviess, 75; Pike, 49; Knox, 47; McCracken, 45; Hopkins and Whitley, 40; Hardin, 39; Nelson and Pulaski, 37; Jessamine, 29; Franklin and Mercer, 27; Anderson, Christian and Taylor, 26; Barren, 25; Allen, Grant and Scott, 23; Clark and Montgomery, 22; Johnson, 21; Bullitt and Harlan, 19; Clay and Ohio, 18; McCreary and Pendleton, 17; Boyd, Henderson, Logan and Monroe, 16; Oldham, 15; Grayson and Russell, 14; Letcher, 13; Calloway and Wayne, 12; Boyle, Edmonson, Floyd, Perry and Woodford, 11; Bourbon, Butler, Martin and Rowan, 10.
• Hospital numbers remained stable, with 1,335 Covid-19 patients, 373 of them in intensive care and 172 of those on ventilators.
• Intensive-care beds are at least 80% full in three hospital-readiness regions: Barren River, 82.41%; the easternmost region, 85.29%; and Lake Cumberland, 97.78%. 
• The Biden administration is increasing Kentucky's vaccine supply by an additional 5%, increasing the state's supply by 22% the week of Feb. 8, compared with the week of Jan. 25, Beshear's news release said.