Unmasked and open for business, the world is increasingly prepared to move on from the pandemic. But our world certainly has not returned to normal.
Government response to these crises hasn’t deviated much from the COVID playbook of unilateral restrictions on protected liberties.
In fact, the recurring theme of policy in our post-pandemic world has been the state of emergency.
Sometimes a state of emergency is justified: As of this writing, at least 30 people in Kentucky are dead following historic flooding. Governor Andy Beshear declared a necessary state of emergency when flooding began to shut down affected roads and mobilize the National Guard to help. The situation is fast-moving with urgent life-or-death stakes.
But other crises are long-term problems that require thoughtful deliberation and cost-benefit analysis. In this tumultuous world where extraordinary events seem increasingly ordinary, constant crisis cannot mean a constant loss of rights.
If Governor Beshear’s actions during the current flood exemplify a justified use of emergency powers, his actions during COVID exemplify a more problematic use of power.
A year into the pandemic, Governor Beshear extended an order limiting restaurant seating capacities to 60% and prohibiting bar seating, despite a downward trend in case count.
For Kentucky restaurants like our clients Goodwood Brewing Company and Trindy’s, the governor’s mandates had devastating effects on their business, cutting revenue by half.
Despite the massive toll that compliance with the governor’s rules took on their livelihoods, business owners were further strained by the ambiguity of constantly changing mandates, adding the threat of shutdown by the government to the threat of shutdown overall.
In response to these indefinite mandates, Pacific Legal Foundation helped craft model legislation to curb and prevent future executive overreach.
Based on PLF’s model bill, the Kentucky legislature—over Governor Beshear’s veto—adopted a series of laws that precluded the governor from issuing “emergency” executive orders longer than 30 days without legislative approval, gaining overwhelming support from frustrated Kentucky lawmakers and citizens.
From the judicial side, Goodwood Brewing Company, Trindy’s, and Dundee Tavern, outraged by Governor Beshear’s monopolistic control over their businesses, challenged these continued executive orders in court.
We helped these restaurants sue Governor Beshear for violating the separation of powers in the Kentucky Constitution with his continuous extension of executive orders.
To avoid the new laws’ requirements, the governor brought a case of his own. But the Kentucky Supreme Court ultimately ruled in favor of the separation of powers and against Beshear’s executive overreach.
While these two cases are significant victories in the preservation of our rights, many states have yet to adopt this kind of protective legislation.
Throughout the pandemic, courts across the country heard cases brought by business owners against oppressive and unconstitutional government action. Unfortunately, many courts, citing the severe nature of the pandemic, allowed governors to claim singular authority over all extensions and enactments of executive orders.
Vesting this much power in a single individual is undeniably dangerous. The actions of governors around the nation during the pandemic prevented Americans from exercising their protected liberties, including running businesses or even leaving their own homes.
Thus, judges must carefully scrutinize government actions in order to prevent an arbitrary, indefinite loss of rights
During an acute emergency like the early days of the pandemic, vesting emergency powers with governors makes sense: An urgent crisis demands swift action. State legislatures have passed laws allowing governors to exercise certain powers during emergencies when legislative deliberation is not possible.
But the world is more than two years into the COVID-19 pandemic. Governors cannot extend their emergency powers indefinitely to make policy without legislative input. Our Constitution deliberately divides powers between the executive, legislative, and judicial branches. That’s how the Constitution protects individual liberties from overreach by any governmental body.
Today, we live in a constant state of people calling things emergencies that are not emergencies. However, without the correct limits on executive powers, our new normal will be a permanent loss of our protected rights.
Liberty cannot be conditional.
Freedom’s ultimate value lies in its permanence, its unwavering presence in war and in peace, in crisis and calm.
Michelle Wu is a 2022 law clerk at Pacific Legal Foundation.