Guest Blog: Kentucky's Emergency Order Statutes are Being Tested. They Grant Too Much Power.
The response to the COVID-19 pandemic has led to a wave of governors effectively shutting down their respective state economies. Certainly, the United States is in a crisis, one from which we may not see the light of day for weeks, and the economy has almost certainly entered a recession, with millions of Americans losing their jobs as businesses are forced to either cut back or shutter their enterprises.
Gov. Andy Beshear has used the broad executive powers given to him by the Kentucky General Assembly under Kentucky Revised Statutes (KRS) Chapter 39A to shut down most retail businesses. Exemptions were made for several industries, including grocery stores and pharmacies, banks, gas stations, and hardware stores. Although this is not a mandatory “shelter-in-place” order, it is designed to discourage people from leaving their homes. “Healthy at home” is what Beshear has called his administration’s response to COVID-19.
Some have questioned whether governors should have such broad powers without some measure of a check-and-balance. There has also been renewed interest at the federal level in the restoration of Article I of the Constitution, separation of powers, and checks-and-balances. Earlier this year, FreedomWorks Foundation released an issue brief, Restoring the Balance of Powers, in which we explored the need for Congress to reclaim its authority in three specific policy issues – regulation, trade, and war powers – and offered strategies to help federal lawmakers accomplish this goal.
In the Commonwealth, part of the problem is that the Kentucky General Assembly, like in so many other states, has granted these powers to the Governor. The Kentucky legislature was likely motivated by the fact that our legislature is not in session year-round or even for a majority of the year. The Kentucky General Assembly is a citizen legislature, meaning that lawmakers have day jobs. Their legislative role is theoretically a part-time one. Moreover, the Kentucky Constitution limits the number of days that the legislature can meet – no more than 30 days in an odd-numbered year and no more than 60 in an even-numbered year.
Of course, there are occasions that may require the legislature to meet after it has fulfilled its obligations for the session. Still, the power to call an “extraordinary session” of the legislature rests entirely in the hands of the Governor, who may also choose the subjects that lawmakers can consider when they return to Frankfort.
Essentially, the legislature has created a “strong executive,” one who fills the void when the legislature has met its obligations under the Kentucky Constitution. The question remains –should any individual have the power to mandate such extreme actions without accountability from the Commonwealth’s elected representatives?
These powers are not limited to effectively shutting down most commerce in the Commonwealth. It also includes Beshear’s ability to put a hold on elective medical procedures. Such a step may sound reasonable, but elective medical procedures include matters of life and death, including organ transplants and surgeries to remove cancer. The Beshear administration has also suspended Kentuckians’ right to assemble by banning all mass gatherings.
Certainly, the United States has entered a time of uncertainty because of COVID-19. This virus, without question, is a threat to public health. In many instances, businesses have responded to recommendations by state and federal public health officials by voluntarily enforcing social distancing guidelines, curtailing their activities to limit the number of consumers in their stores, or by taking other measures.
The wisdom of Governor Beshear’s decisions in the midst of this pandemic is, perhaps, a question for another day. Still, one has to come back to the question at hand: should one individual have this much power? After this crisis has ended, the answer is one that the Kentucky General Assembly should determine.
Of course, this would require amendments to the Kentucky Constitution, which would require approval from a majority of voters, and an overhaul of existing statutes. Regardless of the amount of legislative work that would be required for such an endeavor, the Kentucky General Assembly should have a role. The best way these changes can be accomplished is to require the Governor and administration officials to seek ratification of these decisions within a certain timeframe from the time of an emergency declaration. If the legislature does not approve, the order issued cannot continue.
Some may complain that such an idea may go too far or that a Governor needs more flexibility to respond. To leave all decisions to only one individual to both declare an emergency and then to take steps to deal with that emergency is an incredibly slippery slope.
Jason Pye is the Vice President of Legislative Affairs for FreedomWorks.