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Legal fight opens over laws to limit Beshear's COVID powers

WCPO andy beshear AP file photo
Posted at 3:22 PM, Feb 03, 2021

FRANKFORT, Ky. (AP) — A new Kentucky law limiting the governor’s power to combat COVID-19 threatens to immediately undo many of his orders to slow the spread of the virus, his attorney told a judge Wednesday.

The status of Democratic Gov. Andy Beshear’s COVID-related orders became the focus of a court hearing coming one day after the Republican-led legislature reined in his emergency powers. Beshear promptly filed a lawsuit claiming the measures violate separation-of-powers provisions in the constitution. He’s seeking a court order to immediately block the measures.

Even though the new laws took effect immediately, the “status quo is actually unchanged from the day before,” said Victor Maddox, an assistant to Republican Attorney General Daniel Cameron. None of the governor’s coronavirus-related orders have been set aside, Maddox told a judge.

Amy Cubbage, the governor’s general counsel, disputed that in taking aim at one of the new laws. It allows businesses and schools to comply either with COVID-19 guidelines from the governor or the federal Centers for Disease Control and Prevention — whichever standard is least restrictive. Unlike a companion law limiting Beshear’s executive powers, it does not have a phase-in period, she noted.

“This can be interpreted to completely undo the mask regulation and any capacity limits,” Cubbage said during the court hearing conducted by Zoom. “We could have large-scale events tomorrow.”

Beshear warns large gatherings risk accelerating the spread of COVID-19, and touts his long-running mask mandate as a key preventative step. In seeking an injunction to block the measure, Cubbage said it creates an “immediate emergency” due to confusion about what rules are in place.

During the hearing, Franklin County Circuit Judge Phillip Shepherd said the implementation of that law was “concerning” regarding its effect on the governor’s existing virus orders. Attorneys for top legislative leaders said the new laws do not apply retroactively to previously issued orders.

Shepherd urged both sides in the lawsuit to engage in “good-faith negotiations” to try to resolve disputes so there isn’t a “cloud of uncertainty” about what rules will apply in combating the pandemic. House Speaker David Osborne and Senate President Robert Stivers, both Republicans, are among the defendants in the governor’s lawsuit.

The judge did not issue any immediate orders.

All three new state laws targeted in Beshear’s lawsuit include emergency clauses that let them take effect immediately. The governor is seeking a temporary injunction to block them until the legal dispute is settled.

Republican lawmakers — who hold supermajorities in the House and Senate — voted Tuesday to override the governor’s vetoes of the bills. It amounted to a repudiation of the governor’s nearly 11-month strategy to contain the spread of the coronavirus.

Beshear maintains the steps he took to limit activity during the pandemic have saved lives. GOP lawmakers contend Beshear overreached with his restrictions on businesses and individuals.

The Bluegrass State has reported more than 3,800 virus-related deaths since the pandemic began, far fewer per capita than some of its neighbors, including Tennessee and Indiana.

Another new law targeted by the lawsuit would limit the governor’s executive orders in times of emergency to 30 days unless extended by lawmakers. It applies to orders that restrict in-person meetings of schools, businesses and religious gatherings or impose mandatory quarantine or isolation requirements.

“The 30-day clock that the legislation creates is likely now running,” Maddox said.

The other new law being challenged by Beshear would give legislative committees more oversight and control over the governor’s emergency administrative regulations.

It’s the latest round of court fights over Beshear’s response to the pandemic. Last year, Kentucky’s Supreme Court upheld the governor’s authority to issue coronavirus-related restrictions on businesses and individuals to try to contain the spread of COVID-19.