For the past year, Gov. Andy Beshear and his public health administration have ruled over the people of Kentucky through unending executive orders instructing people and businesses how to conduct themselves during the pandemic.
On Feb. 2, the clock began to run down on those powers. And on March 5, the clock ran out.
It’s about time.
Credit goes to the members of the Kentucky General Assembly who moved to limit the governor’s powers and restore democratic accountability. In Kentucky, as in every other state, the legislature is supposed to write the laws — the governor is charged merely with enforcing those laws. That’s why in February the General Assembly took back its constitutional power to write the laws by placing a 30-day time limit on emergency declarations and the powers that go along with them.
The new laws limiting emergency powers are tied up in court at the moment as the governor argues that he has the authority to act unilaterally during emergencies, without legislative authorization or oversight. Essentially, the argument goes, “science” lets him write the laws as well as enforce them during an emergency like COVID-19.
But this legal battle isn’t simply about whether Beshear’s orders make for good policy. It’s not about whether social distancing, mask-wearing, business shutdowns and capacity limits or curfews are effective in curbing the pandemic. It’s about whether the executive branch of Kentucky’s government has the authority to both write the laws and enforce them. It’s about the separation of powers, one of the most essential checks on the exercise of arbitrary power that schoolchildren in Kentucky and across the country are taught to revere from a young age.
A great many Kentuckians have concluded that the governor has overstepped his bounds. And they’re making their voices heard, challenging Beshear’s unilateral policy-making in court. A group of Kentucky businesses including Goodwood Brewery, The Dundee Tavern and Mindy’s, represented by Pacific Legal Foundation, filed a lawsuit recently to enforce the guarantee of separation of powers under the Kentucky Constitution. We argue the governor can’t be allowed to continue enforcing emergency laws that are no longer in effect. This is the very definition of arbitrary rule.
Americans were not made to be ruled by executive decree. It is against our cultural DNA and the constitutions we’ve adopted to remind those who would govern that they serve at the will of the people. The constitutional framework of separation of powers restricts the powers exercised by each branch of government to their own functions, and Beshear took an oath to respect that separation by faithfully executing the laws of Kentucky. But for the past year, he has indicated a preference for drafting those rules himself. The Kentucky business leaders in this lawsuit simply seek to hold Beshear to his oath.
Kentucky’s Constitution provides that the legislature will write the laws, the governor will faithfully execute them, and the courts will decide disputes concerning those laws. This separation of the core powers of government can be found in every state’s Constitution as well as the federal one. That’s because the founders of this nation were very well aware of the historical abuses that flow from concentrations of power in a single person or political entity.
To be sure, last spring most Kentuckians were willing to give the governor the benefit of the doubt when the pandemic began. After all, little was understood about the virus and how it spreads, so the people were willing to trust that he would need emergency powers to respond in a fluid and uncertain environment.
But a year later, with case numbers coming down and vaccines increasingly available to the public, that’s no longer the case. Those emergency powers were never intended to be a blank check. We should be on guard whenever government officials, under the cover of an “emergency,” demand more power for themselves, without checks and balances, to rule over the rest of us.
Which is why it’s good news that the legislature reined in the governor’s powers, and that these businesses are now fighting back against Beshear’s desire to rule by decree. An ideal outcome in this case would be for the governor to simply accept these sensible limitations on his emergency authority — and then get back to working with the General Assembly to craft an accountable and transparent approach to governing that respects the separation of powers.
Until that happens, Kentucky lawmakers and citizens need to keep pushing back to hold the governor accountable.
This op-ed was originally published by The Courier-Journal on March 24, 2021.