Limiting Governor Beshear's Executive Authority
As everyone knows in early March of this year our country was faced with COVID-19, which triggered a lot of executive action by Governors across the United States. Governors instituted several lockdown procedures in order to "flatten the curve" so our medical industry would not be overrun with an excessive amount of COVID-19 cases. This lockdown was only supposed to be for 2 weeks, but here in Kentucky it turned into about 8 weeks of strict lockdown, give or take a few depending on what industry you were in. From there we have gone from one arbitrary policy regarding shutdowns, restrictions, and masks to another, like taking a ride on a yo yo. None of it helping. We are now at an all time high per our Governor's numbers. We could list off ad nauseum everything Governor Beshear has done wrong, well intended or not, but by now most know it hasn't worked and only die hard partisans are willing to follow this man. Beshear has allowed his own ego to get in the way of making the situation better for Kentuckians because he can't admit he was wrong.
Later we will follow-up with what he did wrong and what he should have done, but for this post we just want to bring to your attention some bills that are being crafted by state legislators that would curb his power, in fact it would curb every Governor this state ever has regardless of party if they are enacted. The Kentucky State Legislature delegated this authority the Governor has been acting on per KRS 39A-F that became law in 1998. Since they gave it to him, they certainly have the power to adjust it, or outright revoke it altogether.
Below are some of the bills filed so far, while we are sure there are some good things in these bills, but as always, the devil is in the details. These bills will be discussed, debated, and adjusted to a more refined final version. However, we would expect this debate to happen quickly as the session goes until the end of March, and the state simply can't afford to wait almost 4 more months for something to be done. The General Assembly is schedule to meet January 5th.
BR 130 - Sponsored by Rep. Savannah Maddox: This was an amendment to one of her bills last year to try and wrangle-in the Governor's actions back in March and April. Unfortunately it failed, as there was just not enough time or understanding. However, now the details can be fleshed out and we expect this bill (maybe with a few amendments) or another one like it to be passed.
BR 41 - Sponsored by Sen. Matt Castlen: This bill is similar to BR 130
BR 73 - Sponsored by Rep. Jim Gooch: Similar to the ones above.
BR 47 - Sponsored by Rep. Steve Sheldon: It will trigger a special session/extraordinary session if the emergency is going to be 15 days or longer and it prohibits him from suspending other statutes and regulations, which is something the Governor can do under 39A, which is suspend any law he wants. It also prohibits him from declaring a new emergency based on the same facts.
BR 66 - Sponsored by Rep Lynn Bechler: This bill would limit an emergency declaration to 28 days, unless allowed by the General Assembly or the local governing body of the area the emergency order affects, is how we understand that second clause, as not all emergencies have to be statewide. We don't see that it explicitly states the legislature is in session, but one can only assume that they would have to come in, in order to grant approval of it going over 28 days.
BR 98 - Sponsored by Sen. Chris McDaniel: This Constitutional Amendment would trigger a legislative session if a declared emergency goes beyond 30 aggregate calendar days, if the General Assembly is not already in session. The purpose of the special session would be to basically review the Governor's Executive Orders relevant to the emergency.
There are some Constitutional issues in these bills the legislature will have to dance around to make some version happen as the Governor right now does have the authority to make Executive Orders and calls the General Assembly into session. The legislature though could place limits on those orders as right now they do ratify or reject them every session. They would most likely have to get a Constitutional Amendment created to get a special session to happen without a Governor's approval. However with constraints written into the law on what he is allowed to do and not do it would make the need for a special session less likely.
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