The battle over the legality of executive orders issued by Gov. Andy Beshear during the coronavirus pandemic reached the Kentucky Supreme Court on Thursday.
Oral arguments were presented by attorneys representing Beshear, Attorney General Daniel Cameron and three Kentucky businesses. Since the coronavirus pandemic reached the commonwealth in March, Beshear has taken numerous steps in an attempt to prevent the spread of the virus, including mandating the use of masks and limiting public gatherings.
But lawyers for Cameron and the businesses contend that these actions overstepped the powers of Beshear’s office.
Chad Meredith, the Solicitor General for the Commonwealth, argued that while the governor does have the ability to address COVID-19, executive action is not the proper channel to do so.
“Is the governor powerless to address COVID-19? No,” Meredith said. “Does that mean he can do whatever he wants? No. The governor cannot force on the people of Kentucky rules of 'breathtaking scope and implication', to borrow a phrase from Dr. Stack. But, your honors, that's what he's done. Going on seven months now, the governor has been issuing executive orders to control breathtaking aspects of the citizens’ private lives in Kentucky.”
Arguing in favor of Beshear’s orders, La Tasha Buckner, the governor’s Chief of Staff and General Counsel, said steps taken by Beshear thus far have been based on guidance from the White House and CDC, and that they are in line with similar steps taken by other states. A ruling against the governor could set a dangerous precedent that would limit his ability to respond to other types of emergencies in the future, Buckner said.
“If the appellees are successful, this governor could no longer take action and help thwart the devastation seen by New York, Georgia or Florida,” she said. “And our government would be prevented from doing one of our core functions, which is to help protect the public in emergencies.”
Buckner also highlighted the impact of the disease in the first six months of the pandemic, its highly-communicable nature and the lack of a vaccine. The 197,000 deaths nationally and more than 1,100 fatalities in Kentucky show that this is a “once every 100 year” pandemic, Buckner said.
Without the actions taken by Beshear early on, the case totals and the death toll would be higher, she said.
“We know that these measures have worked,” Buckner said. “They've helped lessen the impact across the state. A study conducted by the University of Kentucky has shown that thousands of lives have been saved by these measures.”
Attorney Christopher Wiest argued against the governor’s orders on behalf of the businesses. He said the governor's orders put in place unlawful restrictions that place unnecessary burdens on Kentucky business owners.
Opposition to the orders isn’t an attack on the efficacy of masks or other matters of public health, but the avenues through which Beshear implemented them, Wiest said.
“While it may be inconvenient for the governor to follow this administrative path that the General Assembly has laid out for him, it’s not impossible,” Wiest said. “This case is about the governor's failure to follow that constitutional path.”
The businesses and the attorney general are asking that the orders be blocked. The case originated in lower courts before being picked up by the Supreme Court. A judge in Boone County previously announced an intention to nullify Beshear’s orders, but the Supreme Court ruled the orders will stay in place until the case is resolved.
