Kentucky High Court Upholds Governor’s Powers To Fight Virus

FRANKFORT, Ky. — Kentucky’s Supreme Court on Thursday upheld the governor’s authority to issue coronavirus-related orders putting restrictions on businesses and individuals to try to the contain spread of COVID-19.

The ruling delivered a victory for Democratic Gov. Andy Beshear in a legal fight with the state’s Republican attorney general, Daniel Cameron, over the breadth of the governor’s emergency powers. The decision comes amid Kentucky’s worst virus outbreak since the pandemic began.

Beshear properly declared a state of emergency and validly invoked his emergency powers under state law to combat the public health crisis, the Supreme Court said in its unanimous ruling.

Justice Lisabeth T. Hughes, writing for the court, said the governor’s orders are necessary to slow the spread of COVID-19 and protect the health and safety of Kentuckians.

The ongoing pandemic is “precisely the type of emergency that requires a statewide response and properly serves as a basis for the governor’s actions” under state law, she wrote.

The high-stakes case tested the legality of Beshear’s orders to try to control the virus’s spread by restricting public behavior. At stake were a multitude of Beshear’s orders that include restricting the number of children in day cares and crowd sizes at public events. Also on the line was the governor’s order requiring most people to wear masks in public.

During a September hearing before the state’s high court, Cameron’s attorney claimed that Beshear had overstepped his constitutional authority. The court disagreed, ruling Thursday that Beshear acted within his statutory and constitutional authority. To rule otherwise would leave the state “without day-to-day leadership in the face of a pandemic,” Hughes wrote.

“As with all branches of government, the governor is most definitely subject to constitutional constraints even when acting to address a declared emergency,” Hughes added. “In this case, however, the challenged orders and regulations have not been established to be arbitrary.”

The court noted one exception — “one subpart of one order” no longer in effect — that it said violated the state constitution. That order dealt with social distancing at entertainment venues.

The case originated in northern Kentucky, where a child-care center, an auto race track and a bakery challenged the governor’s COVID-19 orders, claiming the actions made it nearly impossible for them to survive financially. Cameron intervened in support of the businesses’ efforts to strike down the emergency orders. In July, the state Supreme Court stepped into the dispute by halting any lower court orders blocking Beshear’s actions pending its own review.

In writing for the court Thursday, Hughes said: “Even if some plaintiffs arguably have established irreparable harm to their businesses, that alone is insufficient to justify an injunction precluding enforcement of emergency orders and regulations directed to the protection of the health and safety of all Kentuckians. Applying our time-honored injunction standard, the law and equities favor the governor in this matter.”

In rejecting the plaintiffs’ arguments, the court also said the governor has authority to “act without deference to any determination” by local authorities or emergency management agencies.

But even after the pandemic ends, the historic case figures to have long-term effects on the reach of a Kentucky governor’s executive power in times of crisis. Beshear’s attorney had argued that a ruling against the governor would have broader ramifications, restricting his and his successors’ ability to respond to other emergencies such as floods and ice storms.

The struggle to protect executive power marked a dramatic role reversal for Beshear, who as attorney general repeatedly challenged the authority of his predecessor, Republican Gov. Matt Bevin, to take action unilaterally. During their feud, Beshear filed a series of lawsuits challenging some of Bevin’s executive actions, including the replacement of members of state boards and commissions. Beshear narrowly defeated Bevin in last year’s gubernatorial election.