Five bills have been pre-filed in the General Assembly to limit the governor’s power during a state of emergency. Generally, the bills limit the length of a governor’s emergency orders to between 14 and 60 days and require the legislature to convene and approve extensions beyond that timeframe. You can read more about the importance of limiting the governor’s power in the latest column by BIPPS CEO Jim Waters.
Many members of legislative leadership have commented publicly that passing some version of these bills is a priority for the 2021 session. However, there’s reason to be skeptical that approving these bills will actually limit the governor’s power, including the recent failure of the Administration Regulation Review Committee to condemn Gov. Andy Beshear’s COVID-19 mandate forcing all Kentuckians, with few exceptions, to wear masks in public places and allowing the Cabinet for Health and Family Services (CHFS) to impose penalties on offenders.
Though the committee cannot overturn the regulation, it missed a golden opportunity for lawmakers to send a strong message of disapproval of this unconstitutional mandate and demand the governor withdraw it.
After co-chair Sen. David Hale, R-Wellington, made a motion to find the regulation deficient, Sen. Steve West, R- Paris, who also co-chairs the committee, clearly laid out the argument for why this mandate is unlawful, including:
- It singles out specific businesses and makes arbitrary exceptions to the mandate.
- It puts businesses in the position of enforcing hastily promulgated regulations.
- It violates due process rights by levying arbitrary penalties with no appeals process.
- There’s inconclusive evidence the regulation stops or even slows the spread of the coronavirus.
- There’s been no opportunity for public comment at any point during this process.
- The regulation has not had a House or Senate floor vote.
Despite these facts and that 75% of the committee is comprised of Republican legislators crowing about the Democratic governor’s autocratic abuse of power, the motion to find the regulation deficient was voted down.
Many see the mask mandate as the ultimate representation of government overreach. Yet, the committee at its first opportunity essentially endorsed the mandate. Sens. West and Hale and Rep. Deanna Frazier, R-Richmond rightly voted to find the regulation deficient, while Sen. Julie Raque Adams, R-Louisville, Sen. Alice Forgy Kerr, R- Lexington, Rep. Tommy Turner, R-Somerset, Sen. Reginald Thomas, D-Louisville, and Rep. Mary Lou Marzian, D-Louisville voted against Sen. Hale’s motion.
If there’s not enough backbone to push back against Beshear’s unconstitutional orders — especially an order as despised as his mask mandate — what can we expect from the legislature in terms of how it would use the authority to reign in the governor’s power?
Kentucky citizens, including business owners — particularly those who own smaller businesses — will rightly be outraged to discover all the blustering about the governor’s excessive use of executive power is nothing more than theatrics to placate Kentuckians whose rights are being violated daily.