Legislature overrides vetoes of three bills limiting governor's emergency powers; Beshear files lawsuit to nullify those new laws

The Kentucky House of Representatives (Courier Journal photo)

By Melissa Patrick
Kentucky Health News

The legislature's Republican supermajority flexed its muscle Tuesday and overrode Democratic Gov. Andy Beshear's vetoes of six bills, three of them designed to limit the emergency powers that he says he needs to thwart the coronavirus pandemic.

Beshear immediately filed a 236-page lawsuit to nullify the three bills, saying in a news release that he did so to stop legislators from stripping him of his ability "to implement lifesaving public health measures during a pandemic that has killed more than 3,700 Kentuckians." 

“Today, the General Assembly attempted to surrender to Covid-19 and accept the casualties. As your governor, I cannot let this happen,” Beshear said. “I have filed this action to continue to fight for the protection of all Kentuckians.”

Republican lawmakers are looking to limit governor's powers at a time when the state is recovering from its third escalation of virus cases while suffering more deaths; working to ramp up vaccinations; and warning that new variants of the virus could cause huge spikes in cases by March. 

Beshear announced 2,443 new cases Tuesday, bringing the seven-day average down to 2,352. This is the fifth consecutive day that the share of Kentuckians testing positive for the virus is below 9 percent, at 8.83%.  

Deaths from the virus remain high, largely a result of the escalation of cases leading up into November and the holiday bump. Today, Beshear reported 32 more Kentuckians had died from the virus, 28 of them confirmed and four of them probable, bringing the state's death toll to 3,812. 

Again, Beshear made the argument that Kentucky has fared better than other states under his orders, seeing fewer cases and significantly fewer deaths. 

As an example, he pointed to Tennessee, which does not have a mask mandate. Adjusted for population, he said Kentucky has lost less than two-thirds the number of lives to Covid-19 as Tennessee. He also noted that Kentucky has lost less than half the lives lost in North or South Dakota, states that refused to enact any mitigation measures until they recorded the highest mortality rates in the world. 

“The lesson is clear: When a governor takes action, his or her state experiences fewer deaths,” Beshear said. “When a governor does not, the results are tragic.”

With very little debate, all three of the bills Beshear is challenging were quickly overridden and re-passed out of both Chambers. 

One of the bills is House Bill 1, which allows businesses, schools, nonprofits and churches to stay open during the pandemic as long as they have a plan in place that meets the requirements of the least restrictive plan set forth by either the Centers for Disease Control and Prevention or the state administration. It was overridden in the House 72-22 and in the Senate 29-8. 

Rep. Rachel Roberts, D-Newport, a small-business owner, pointed out that the CDC guidelines are ever-changing and are meant to be used as guidelines, and not in the way this bill calls for. 

"I find this bill to be confusing. I find it to be reckless, and I think this bill will lead to more loss of life," she said. 

Rep. Buddy Wheately, D-Covington, cautioned that passage of this bill could lead to others like it, ceding power to the federal government. He called the bill a "slippery slope" and said, "It's not good policy. Let's not tie his hands. Let's let him continue this job . Let's let him be the governor and not diminish his powers like this." 

Another, Senate Bill 1, limits to 30 days Beshear's executive orders that restrict the function of schools, businesses or nonprofits, unless they are extended by the General Assembly. It also applies to executive orders that regulate political, religious and social gatherings or impose mandatory quarantines or isolation requirements. It also strips the ability of the governor and the secretary of state to change the manner of an election during an emergency without approval of the legislature. It was overridden in the Senate 29-8 and in the House 69-20. 

Senate Minority Leader Morgan McGarvey, R-Louisville, said this bill does nothing to help the people of Kentucky, which is what they were all sent there to do. 

"What this bill does do, despite any political ramifications it has today, it handcuffs every future executive branch official, every future governor and how they organize what they do and how they respond to crisis when we're not here," he said. "This is a part time legislature, it is a full time executive. We should be shaping policies that help people now into the future. I don't think this bill does that and that's why I vote no." 

Sen. Stephen Meredith, R-Leitchfield, said he voted yes for SB1, "On behalf of the tens of thousands of Kentuckians who are still waiting to get an employment check. For the hundreds of small business owners who've given up their life savings, given up their life's work, the thousands of  children who have been denied a quality education. 
It's time to change." 

Sen. Matt Castlen, R-Owensboro, the primary sponsor of SB1 said he proudly cast a yes vote for this bill. "And to our small business owners, our restaurants, our families at home teaching their children right now, balancing life and a job and all the other things, the past 333 days have been tough on this state . And we gladly look forward to having a seat at the table representing all corners of Kentucky" 

Stivers added the the lawmakers would be there until March 30, so if the governor wanted to extend his executive orders, he had time to do so. 

During the House debate of SB1, Rep. McKenzie Cantrell, D-Louisville, wanted to know if the lawmakers now planned to do away with the emergency orders, noting that some of them may be tied to much-needed federal monies. 

"What is next?" she asked. "What is the plan?" 

The third one is SB 2 , which allows legislative committees to strike down a governor's emergency administrative regulations. It also requires emergency regulations to include justification or evidence for the order; limits the order to 30 days if it affects education, businesses, nonprofits, local governments or places of worship; and establishes rules to allow for expedited public hearings on the order.  It was overridden in the Senate 31- 6  and in the House 69-20. 

Sen. Stephen West, R-Paris, who is the primary sponsor of SB 2, stressed that this bill allows the public to be able to comment on emergency orders, like the ones that he said stripped people of their jobs, didn't allow landlords to collect rent and restricted in-person worship. 

 All of them have an emergency clause that will make them effective immediately upon the secretary of state's signature. 

House Speaker David Osborne, R-Prospect, told the Courier Journal that he wishes this wasn't going to be litigated, but said Beshear "has shown no willingness to work with us and have these discussions so far, so we fully expected him to litigate this to keep his unilateral power intact."

Upon adjournment, Senate President Stivers, R-Manchester, mimicking the promise made by the governor on Monday at his Covid-briefing, said, "I'll see you in court." 

In other Covid-19 news Tuesday: 

• Today's fatalities were a Bourbon County man, 86; a Clay County woman, 51; a Crittenden County man, 97; two Daviess County women, 60,88; two Daviess County men, 72,77; a Fayette County woman, 81; two Fayette County men, 60,87; a Grayson County man, 62; a Hardin County woman, 76; three Hardin County men, 59,67,73; a Henderson County man, 74; two Hopkins County women, 68,83; four Jefferson County women, 55,70,82,86; four Jefferson County men, 63,63,69,98; a Johnson County man, 79; a Kenton County woman, 78; a Larue County woman, 69; a Marion County man, 56; an Ohio County woman, 71; and a Pulaski County woman, 90
• Counties with 10 or more new cases were Jefferson, 349; Boone, 144; Fayette, 140; Kenton, 132; Madison, 81; Campbell, 78; Laurel and Warren, 77; Daviess, 75; Pike, 49; Knox, 47; McCracken, 45; Hopkins and Whitley, 40; Hardin, 39; Nelson and Pulaski, 37; Jessamine, 29; Franklin and Mercer, 27; Anderson, Christian and Taylor, 26; Barren, 25; Allen, Grant and Scott, 23; Clark and Montgomery, 22; Johnson, 21; Bullitt and Harlan, 19; Clay and Ohio, 18; McCreary and Pendleton, 17; Boyd, Henderson, Logan and Monroe, 16; Oldham, 15; Grayson and Russell, 14; Letcher, 13; Calloway and Wayne, 12; Boyle, Edmonson, Floyd, Perry and Woodford, 11; Bourbon, Butler, Martin and Rowan, 10.
• Hospital numbers remained stable, with 1,335 people with Covid-19 in the hospital, 373 in intensive care and 172 of those on ventilators.
• Intensive-care beds are at least 80% full in three hospital-readiness regions: Barren River, 82.41%; the easternmost region, 85.29%; and Lake Cumberland, 97.78%. 
• The Biden administration is increasing Kentucky's vaccine supply by an additional 5%, increasing the state's supply by 22% the week of Feb. 8, compared with the week of Jan. 25, said the news release.